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Constitutional Conflict 

IN 

Provincial Massachusetts 



A Study of Some Phases of the Opposition 

Between the Massachusetts Governor 

AND General Court in the Early 

Eighteenth Century 



By 
HENRY RUSSELL SPENCER 



SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS 

FOR THE DEGREE OF DOCTOR OF PHILOSOPHY 

IN THE 

FACULTY OF POLITICAL SCIENCE 

COLUMBIA UNIVERSITY 



COLUMBUS, OHIO 

Press of Fred. J. Heer 

1905 



Constitutional Conflict 

IN 

Provincial Massachusetts 



A Study of Some Phases of the Opposition 

Between the Massachusetts Governor 

AND General Court in the Early 

Eighteenth Century 



By 
HENRY RUSSELL SPENCER 



SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS 

FOR THE DEGREE OF DOCTOR OF PHILOSOPHY 

IN THE 

FACULTY OF POLITICAL SCIENCE 

COLUMBIA UNIVERSITY 



COLUMBUS, OHIO 

Press of Fred, J. Heer 

1905 



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Carnegie Inst. 

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CONTENTS. 

Chapter I. Antagonistic Colonial Ideals 5 

Chapter II. Compromise in the Charter 13 

Chapter III. The Prerogative Bodies 22 

Chapter IV. The Popular House 42 

Chapter V. The Salary Question 64 

Chapter VI. Control of the Treasury 95 

Chapter VII. Control of Military and Diplomatic Affairs ... 115 

(3) 



CHAPTER I. ANTAGONISTIC COLONIAL IDEALS. 

In the constitutional history of Massachusetts there are pre- 
sented to view three well marked periods of development, sep- 
arated by revolutions. They may be called the colonial, the pro- 
vincial and the commonwealth periods, and correspond roughly 
with the seventeenth, the eighteenth and the nineteenth centuries, 
respectively. But in its more obvious features, at least, this is not 
a history of steady progress toward constitutional liberty; rather 
there are two periods of such development, separated by a third 
of conscious reaction. 

In the first or colonial period we see what claimed to be, and 
in many respects was, a commonwealth, self-sufficient, dependent 
on England for sovereignty, but itself assuming the exercise of 
all sovereign powers. Barely nominal regard was shown for the 
express commands of the king of England, and the relations held 
with him were those rather of diplomacy than of colonial subjec- 
tion. The reason for this was to be found first, in the infancy 
of the colony, a time when generally the ideas of private founders 
are allowed free course, in the ideal of a free Calvinistic common- 
wealth, enjoying complete self-determination in a polity which 
made the state serve the church ; secondly, after the colony had 
acquired a character, and strength to stand for that character, 
in the preoccupation of the home government with civil distur- 
bance in England. 

With the progress of Charles II's reign, as the purity of the 
colonial ideal was corrupted and as the home government won 
leisure to attack its problem of empire, this quasi-independent 
regime was attacked by foes without and within, a process which 
reached its climax in what may be called the revolution of 1684- 
91. The foes without were the English agents of the Restoration 
policy, such as Randolph and Andros ; the foes within were 
Massachusetts men dissatisfied with the old. regime, such as 
Joseph Dudley and a growing party, who were wearying of the old 
exclusive Congregationalism and the Puritan morals, or who had 
commercial aspirations toward larger economic possibilities of the 
province in trade with the mother country; their co-operation 

(5) 



CHAPTER I. ANTAGONISTIC COLONIAL IDEALS. 

In the constitutional history of Massachusetts there are pre- 
sented to view three well marked periods of development, sep- 
arated by revolutions. They may be called the colonial, the pro- 
vincial and the commonwealth periods, and correspond roughly 
with the seventeenth, the eighteenth and the nineteenth centuries, 
respectively. But in its more obvious features, at least, this is not 
a history of steady progress toward constitutional liberty; rather 
there are two periods of such development, separated by a third 
of conscious reaction. 

In the first or colonial period we see what claimed to be, and 
in many respects was, a commonwealth, self-sufificient, dependent 
on England for sovereignty, but itself assuming the exercise of 
all sovereign powers. Barely nominal regard was shown for the 
express commands of the king of England, and the relations held 
with him were those rather of diplomacy than of colonial subjec- 
tion. The reason for this was to be found first, in the infancy 
of the colony, a time when generally the ideas of private founders 
are allowed free course, in the ideal of a free Calvinistic common- 
wealth, enjoying complete self-determination in a polity which 
made the state serve the church ; secondly, after the colony had 
acquired a character, and strength to stand for that character, 
in the preoccupation of the home government with civil distur- 
bance in England. 

With the progress of Charles II's reign, as the purity of the 
colonial ideal was corrupted and as the home government won 
leisure to attack its problem of empire, this quasi-independent 
regime was attacked by foes without and within, a process which 
reached its climax in what may be called the revolution of 1684- 
91. The foes without were the English agents of the Restoration 
policy, such as Randolph and Andros ; the foes within were 
Massachusetts men dissatisfied with the old. regime, such as 
Joseph Dudley and a growing party, who were wearying of the old 
exclusive Congregationalism and the Puritan morals, or who had 
commercial aspirations toward larger economic possibilities of the 
province in trade with the mother country ; their co-operation 

(5) 



6 CONSTITUTIONAL CONFLICT 

resulted in 1684 in the annulment of the charter of 1629, the 
downfall of the old self-government, and the setting up of a 
provincial government strictly dependent upon England, first in 
1685-6, as defined merely in Andros's commission and instruc- 
tions, then in 1691, elaborated in a charter. What is often called 
the revolution of April 19, 1689, when the Andros government 
was overthrown and the old system set on its feet again de facto 
for a brief period, must be regarded as a mere episode in the 
experimentation toward a satisfactory provincial system. It cer- 
tainly affected the form of that system, but the real revolution 
was from colony to province. This was reaction from the Mas- 
sachusetts point of view, progress from the imperial. The the- 
ory of the empire demanded that its members be strictly subordi- 
nated to its head, that the home government have its responsible 
agents in the colonies, to secure co-operation and some degree 
of uniformity. Hence an independent commonwealth, like the 
Massachusetts of the seventeenth century, with no means of 
enforcing the empire's Vv^ill in the colony, was anomalous and 
unendurable. 

The present study is concerned with some phases of the sec- 
ond or provincial period. The new system was a mixture of two 
diverse, frequently opposed, sets of institutions, those of the 
normal British province, and those commonwealth institutions 
which Massachusetts had developed in her seventeenth-century 
independence. In the antagonism soon found and developed 
between them there appeared a constant tendency to reaction 
toward colonial autonomy, a tendency which was constantly op- 
posed and hampered in its progress by the prerogative elements 
in the system. The latter had been designed to be predominant, 
but were obliged perforce to give place more and more to the 
encroaching popular elements. The provincial system of the 
first part of the eighteenth century was then a multiform attempt 
to reconcile actual British sovereignty with considerable practical 
applications of colonial self-government. But as the century pro- 
gressed the reconciliation became more and more difficult. The 
menacing presence of the French on the northern border neces- 
sitated during the "half-century of conflict" a conciliatory policy 
on the part of England, to secure willing co-operation in defence, 
and this meant that the constitutional issue must be postponed. 
After the passing of the French peril in 1763 the issue was forced 



IN PROVINCIAL MASSACHUSETTS. 7 

from home. But in a series of constitutional conflicts between 
popular and prerogative elements of the system the province had 
been developing a constitutional opinion, and a sentiment in favor 
of that opinion : it held that self-government to secure the Massa- 
chusetts conception of the rights of Englishmen was indispensable 
to her welfare and was worth even the sacrifice of the British 
name, if that should prove necessary ; it developed a sentiment that 
was to prove strong enough even to sustain the shock of a war 
to make good that opinion. 

It is this development of the provincial period that resulted 
i-n what is called the American Revolution, whose issue for Mas- 
sachusetts was a third status, that of the legally as well as actually 
independent commonwealth, fully self-determining in its policy 
and conduct, and shortly entering into a union with other com- 
monwealths for the purpose of making more secure the enjoy- 
ment of independence and self-government. 

It is necessary, first, to examine the two opposing govern- 
mental principles whose interaction is the key to the constitutional 
history of the provincial period. Three-quarters of a century of 
neglect by the home government had given the infant colony 
opportunity to develop in its own way, its form determined by 
the fact of organization as a corporation ; but even this form was 
disregarded when the central purpose of the enterprise demanded 
the assumption of powers not usual among corporations. Under 
the guidance of two generations of determined, aristocratic Pur- 
itans Massachusetts had become a theocracy, its sovereignty 
vested in the "freemen" of the Massachusetts Bay Company, 
whose power was concentrated, with the consent of the church- 
members, in the hands of the rulers of the Congregational church. 
This Company, originally organized with an English corpora- 
tion's powers for trade, land-holding, and colonization, had been 
transplanted to America, where it became merged in the colony 
by the admission of the prominent resident colonists to the cor- 
poration. It gradually forsook its natural original functions, and 
became merely a political body, exercising as its chief reason 
for being the power to "governe and rule,"^ v/hich had been 
intended to be merely incidental to the more ordinary powers of 
colony-planting, land-holding, and trading. 



' Mass. Col. Records, I. 17. 



8 CONSTITUTIONAL CONFLICT 

The Assistants, or governing body of the corporation, began 
the exercise immediately of executive, more gradually of legis- 
lative and judicial, powers. But the first twenty years of the 
colony's history saw a steady growth of democracy, the gen- 
erality of the corporation asserting and making good their claim 
to a share in the government. The result of this conflict was the 
development of the General Court as the governing body of the 
colony, composed of two houses, which, taken together, constituted 
its highest authority and could speak the wall of the Massachusetts 
Bay Company. Massachusetts, in the seventeenth century, was a 
prophecy of what the Great Britain of the nineteenth century 
should be, a unified parliamentary system, with all powers of 
government depending mediately or immediately on the legis- 
lature, the General Court, which not only made law and raised 
money in its legislative capacity, but also elected and super- 
intended the action of the executive, the two departments being 
in a relation of mutual control and guidance. The church-mem- 
bership qualification made it far from a democracy resting on the 
consent of the governed ; but to the extent of the church member- 
ship, for the political people, it was practically what it sometimes 
called itself, a commonwealth. It depended on the outside world 
(even the mother country) for none of its essential powers; it 
was a self-governing colony of the nineteenth-century type, rather 
than a province of the eighteenth-century type. 

The normal English province of the eighteenth century, on 
the other hand, suggests the second of the two governmental 
principles, whose contradiction and conflict was to be the central 
thread running through Massachusetts provincial history. With 
the restoration of Charles II came the formulation of the British 
theory of colonies, that was to be put forth during a century and 
a half, an essential part of the mercantile system. It regarded 
the colony as existing primarily for the sake of the mother coun- 
try, only secondarily for its own as part of that mother country's 
family. The colony was justifying its existence only if it min- 
istered to the development of the mother country, furnishing raw 
materials for her manufacture or a market for her products. 
Commercial interests were dominant, and the theory of govern- 
ment for colonies was evolved with a view to promoting them. 

Here, then, is the fundamental idea in the imperial theory of 
colony government. The province was to exist not primarily for 



IN PROVINCIAL MASSACHUSETTS. 9 

its own sake, but for the mother country. If, then, England's will, 
and not that of Massachusetts, was to prevail, the form of govern- 
ment must be adapted to that end. It must be a province and not 
a commonwealth. The political center of gravity, the right to 
give sovereign command, must be not within, not the general will 
of the members, but without, in the sovereign will of England. 
The expression and execution of that will in and for the colony 
was most conveniently and effectually performed through a gov- 
ernor. Its constitution was to be like that of the Tudors, a mon- 
arch governing the people through his own action and that of 
agents constituted and controlled by himself; the representative 
"body existing merely to grant the taxes demanded and assent to 
the laws proposed by the executive body. 

This was in general terms the ideal English view of colonies 
in the later seventeenth century. It never got a complete appli- 
cation in Massachusetts except in the brief administration of 
Andros, but it must be borne in mind as one of the two rival 
principles. 

The first shock of their opposition in Massachusetts came 
in the early sixties on the home government's attempt to enforce 
the acts of trade and to bring about substantial uniformity ,of 
law throughout the empire, with the correspondence of Charles 
II and Massachusetts, and the sending of the royal commission 
'of 1664. With the discovery, as the result of this correspondence 
and of Randolph's efforts, that these two ends could not be at- 
tained under the existing constitution, that the empire had no 
agents to enforce its will in the colony, that the colony's govern- 
ment was self-sufficient and could afford to be heedless of the 
home government's suggestions or even commands, obviously the 
next thing was the removal of the present obstacle, the colony 
charter, on v/hich rested these claims of autonomy. Wtih the 
annulment in 1684 of the charter granted in 1629, the colony 
found itself in the hands of the king, with nothing in law to 
prevent the complete application to Massachusetts of any colonial 
theory he should deem fit. Would the state of public opinion in 
Massachusetts and the force available for the purpose make it 
practicable for the home government to apply the extreme pre- 
rogative theory? The Andros regime was an experiment in this 
direction. As an imperial official he was given powers nearly abso- 
lute, all government to be by himself, assisted by a council named 



lO CONSTITUTIONAL CONFLICT 

in England, a body which by the terms of its constitution could 
be made an instrument entirely in his hands. Legislation and 
tax-granting should be by this council, as well as the constitution 
of courts of justice. 

The failure of the Andros experiment was immediately due 
to the collapse in England of the unconstitutional rule of James 
II, and it is impossible to say whether or not it would have failed 
in Massachusetts in case James's rule had been accepted by. the 
English people or William had accepted James's colonial theory 
entire. It seems probable that at least a violent struggle would 
have been made by Massachusetts against such a regime as per- 
manent, for in spite of Andros's generally mild rule there was 
very strong opposition in several parts of the colony to the pay- 
ment of taxes, not as excessive, but as unconstitutional, the gen- 
eral sentiment being one of resentment against Andros for "accept- 
ing an illegal commission." Besides the constitutional opposition, 
Andros found himself in a difficult situation in that he must 
antagonize the two strongest elements of the population, the 
ecclesiastical by his attempt to secure religious liberty (for the 
Anglican church), the property-holding by his declaration of 
the invalidity of titles which rested on grants by the general court 
through towns (almost the universal form). 

Whether inevitably or not, the Andros experiment failed, 
and the settlement resulting from the "glorious revolution" was 
in Massachusetts a compromise between the two principles of 
government which up to that time received a trial. It was 
early decided not to attempt to govern Massachusetts in the man- 
ner of absolute monarchy; that was probably impossible after 
what happened at home in 1688; A charter should be granted de- 
fining the relation between king and people. But it should not be 
the old charter, under which practically absolute power had been 
granted to or assumed by the general court. The new charter 
of 1691, deriving sovereignty nominally from the king of Eng- 
land, so distributed powers that the exercise of sovereignty was 
shared between the home governm.ent and the organized Massa- 
chusetts people. The governor represented the tradition of the 
Andros absolute government. The general court represented the 
tradition of colonial self-government. The contrast is not the 
same thing as the separation of executive from legislative povN'crs, 
but the two have a close relation. In g'eneral terms, which will 



IN PROVINCIAL MASSACHUSETTS. II 

receive considerable qualification, we may say that the bodies of 
government which exercised executive powers represented the 
provincial element in the system, while the bodies which exer- 
cised legislative powers represented the commonwealth element. 

The provincial period witnessed the interaction of these two 
theories and forces. Government, in the last instance, was to be 
by neither the governor nor the house, but by the two in agree- 
ment, one necessarily yielding to the other. The compromise 
(Pownall's "great question between external and internal princi- 
ples")^ whose foundation was laid in the charter, was subjected to 
modifications as time went on and as doubtful points in the charter 
received interpretation. These determinations depended somewhat 
on occasional circumstances, but in a larger way they show a ten- 
dency toward the restriction of the charter rights of the king, 
and the enlargement of the charter powers of the people, a ten- 
dency by which the provincial constitution gradually reverted 
toward the colonial. But the duality of the provincial government 
was always marked, as compared with the unity of the colonial, 
and though there were times when, under a native lieutenant- 
governor or a weak governor, the house became practically the 
sovereign parliament, controlling executive policy as well as legis- 
lative, this was never more than temporary. As soon as the home 
government realized the situation a new appointment brought its 
proper agents again into action for the execution of its policy, 
and the unified parliamentary government gave way to the normal 
provincial government of balanced governor and house. 

The purpose of this study is to portray the agents that were 
used in carrying out these principles, especially the governor and 
the house-; to study their characteristics as bearing on the general 
question of their relation to one another ; and to follow to their 
conclusion some of the more important disputes, to find how far 
the tendency, above hinted at, for the house to gain at the expense 
of the governor, in the end prevailed. It is believed that such a 
study is necessary to a proper appreciation of the constitutional 
position of the respective contestants, when in the middle of the 
eighteenth century the home government found itself ready to 
push to an issue the differences of opinion then prevailing regard- 
in? its constitutional rights over the colonies. In these contests 



^ Povv'nall, Administration of the Colonies, ix. 



12 CONSTITUTIONAL CONFLICT 

the colony was learning the specific bearings of the difference be- 
tween prerogative and popular theories of government, was devel- 
oping the theoretical views which it was to claim and defend as 
its own, and was educating opinion to a point where the people 
would fight sooner than give up these constitutional claims ; in 
a word, the whole provincial period was the time when the issues 
were formulated and the forces were stored up which were to 
occasion the American Revolution. Or it might be figured as 
a siege, conducted on the plan of the successive capture of out- 
posts till finally the home government makes a sortie and loses 
aH. But there was no conscious striving after independence. 
It was the specific privileges that were fought for and won, and 
independence was the outcome only because by the home gov- 
ernment the specific privileges claimed were deemed incompatible 
with colonial dependence. 



CHAPTER II. COMPROMISE IN THE CHARTER. 

The charter of 1691 is to be observed from two points of 
view ; first, it was the written constitution of Massachusetts dur- 
ing the provincial period. After what has become, largely under 
its influence, a characteristically American fashion, it contained 
a grant of governmental powers, to be exercised in certain pre- 
scribed modes, and created a limited system of government, un- 
able to enlarge its own powers, subject to a superior sovereign 
body which was then the king in parliament, but could readily 
be changed in 1780 to the people of Massachusetts. The charter 
may also be regarded as a summing up of the constitutional 
struggle, the rigid statement in a document of the compromise 
now arrived at between royal and popular principles. That this 
rigidity was only relative the provincial period was to show, with 
its shiftings of checked and balanced powers. 

The charter was signed October 7, 1691, the result of sev- 
eral months' negotiation by four agents of the province on the 
one side, and on the other by the privy council's Committee for 
Trade and Plantations and Attorney-General Treby. The annul- 
ment of the former charter by Charles II and the fall of James 
II and Andres had conditioned the work of the negotiations in 
two ways ; the independence of the province was done away for 
good and all, but the experiment of absolutism had proved a 
failure as well. The committee, having experience of both 
regimes, was ready now on the basis of the lessons thus learned 
to establish not what was correct theory, but what was practica- 
ble. The agents, moreover, had certain well defined ideals, but 
were prepared to compromise when necessary. Elisha Cooke and 
Thom.as Oakes, who arrived in England as extra agents in March, 
1690, having left Massachusetts when the old charter government 
re-established under Bradstreet was in operation, were firm for the 
restoration de jure of what had been de facto restored. The other 
two agents, however, Sir Henry Ashurst, an Englishman, and 
Rev. Increase Mather, who had left Massachusetts when the 
Andros regime was in full operation, knowing better the condi- 
tion of opinion in England and the impossibility of a continuance 

(13) 



14 CONSTITUTIONAL CONFLICT 

of the old system, were ready to take what they could get, using 
the familiar market-place method of claiming everything, but 
showing a readiness to yield here and there in order to make good 
their claim to other points. 

As a first step, early in 1689 Mather used all his "interest" 
to prevent William's reappointment of Andros to his place held 
under James, and upon the news of Andros's fall to prevent the 
appointment of any successor as general governor of New Eng- 
land. Partly because of the hasty manner in which the old char- 
ter had been annulled, partly because of the uncertainty as to the 
attitude of the new Whig monarchy to the colonial policy of 
James, the matter was left undetermined till Andros and his 
subordinates should make known their side of the case, and mean- 
while word was sent by the privy council to those who were ad- 
ministering the government in Massachusetts to continue in that 
service until further orders.^ 

In order to a permanent settlement Mather hoped at first for 
legislative action. The Convention Parliament, in January of 1690, 
resolved that the abrogation of charters in the last reign was 
"illegal and a grievance," and passed a bill through the commons 
for restoring them. But it was overweighted with vindictive 
propositions displeasing to the king, and was thrown out by the 
lords. Upon the dissolution the newly elected parliament was too 
much under the influence of the reaction against Whig revolu- 
tion to pass the bill. Therefore the application to the legislature 
was given up. The defense of Andros and his subordinates against 
the complaint made (though unsigned) by the agents, and the 
complaint which Andros and Randolph were able to/ftiake good 
good against Massachusetts in the matter of the acts of trade, 
their religious exclusiveness and the like, produced a strong sen- 
timent in England against countenancing the revolutionary party 
in Boston ; and the shower of petitions and counter-petitions in 
1690, some in favor of the continuance of the conciliar regime, 
showed that the province was by no means a unit in the desire 
that the old charter should be restored.^ 

The result of all this was a direct application by the agents to 
the king, in whose hands the province now rested. The decision 

'August 12. 1689. Quoted in Palfrey, New England, IV. 25. 
' Palfrey, IV. 64-7. 



IN PROVINCIAL MASSACHUSETTS. 1$ 

of the courts against the charter was not likely to be reversed. 
Parliament would not restore it. But the king might be prevailed 
upon to reincorporate his subjects. Accordingly a petition was 
presented to the king in council with the heads of the charter of 
the Massachusetts Bay Company and of the proprietary charter 
to Gorges for the province of Maine (since 1677 the property of 
the Massachusetts corporation), and the request that their Maj- 
esties "re-establish their corporation and grant them their laws 
and former privileges." In addition to what was contained in 
the old charter new powers were desired; viz., precise authoriza- 
tion of a representative house, power to tax non-freemen and 
strangers, power to punish offenders (the right to apply the 
death penalty being "difficult to make out" of the old charter), 
admiralty jurisdiction such as had been granted to Gorges for 
Maine, power to erect probate and chancery courts, to coin 
money, to settle and raise the militia, and finally a general confir- 
mation of grants of land, together with the pardon of past irregu- 
larities. This petition, having been favorably reported on in gen- 
eral terms by the law officers, was referred to the lords of trade. 
Later they reported that it was necessary for them to know whether 
it was the king's pleasure "to have a governor or single repre- 
sentative of his own appointment from time to time, to give his 
consent to all laws and acts of government, as in Barbadoes and 
other Plantations, Or Whether His Majesty will leave the Power 
of making Laws wholy to the People and officers to be appointed 
by them." The king declared his pleasure that there be a gov- 
ernor appointed by himself, and April 30 the privy council or- 
dered that the lords of trade prepare "the draft of a new charter 
upon that foundation." 

The work now proceeded expeditiously, Attorney-General 
Treby putting the draft into legal form in accordance with the 
determinations of the lords of trade as to policy, holding fre- 
quent consultations with the Massachusetts agents. Mather 
especially received many marks of their consideration for his 
opinion and the province's desires, but on matters important to 
the prerogative his protests, however earnest, were unavailing. 
Even the attorney-general's proposals in behalf of the province 
were in some cases overridden by the lords. For example, the 
governor's veto upon laws and the appointment of the lieutenant- 
governor from home were omitted by him until insisted upon 



l6 CONSTITUTIONAL CONFLICT 

by them, though Mather had declared in this very connection that 
"he would sooner part with his life than consent."^ On July 30 the 
draft was reported to the privy council and sent to the king (then 
with the army on the continent) for his approval, and decision 
as to two chief points objected to by the agents. They desired 
that judicial as well as other general officers be elected by the 
general court, not by the governor and council, and that the 
governor have no veto upon elections to the council. From the 
king came word, August 20, that he "did by no means approve 
of the objections," but "did approve of the minutes agreed unto 
by the Lords of the Committee." On August 27 the agents pre- 
sented a petition requesting a number of changes in detail, and 
two were granted; the "corporal" oath was altered, "that so 
no snare may be laid before such as scruple swearing on the 
book ;" and a clause was added validating land-titles of the old 
regime which lacked the public seal. One of the rejected clauses 
was prophetic of a dispute later to arise. It would have given 
power to the assembly to constitute agents paid by the province, 
to "represent their interest at home as well against the governor 
as otherwise." 

The document thus negotiated constituted the province a 
body politic and corporate, established a frame of government, 
and distributed governmental powers among the agents thus cre- 
ated. This was a century too early for the charter to contain 
a list of rights which the subject should enjoy because they were 
his originally and inalienably. Individual liberty was unprovided 
for, and the liberties of the people were secured rather in the frame 
of government and in the political means of defence which were 
granted, than in any enumeration of rights which might not be 
infringed by government. 

Speaking in general of the frame of government, we must 
recognize first the continuity between the old and new systems. 
It is not a case of throwing down one in 1684 and setting up 
another in 1691. However complete the discretion of the lords 
of the committee as to the details of the charter, they did not, 
practically they could not, get away from the fact that the colony 
had a political past which must be considered the foundation of 
its future ; that it had evolved a system of government which, 



^ C. Mather, Parentator, 134, in Andros Tracts. 



IN PROVINCIAL MASSACHUSETTS. I7 

though it had lost its legal form in 1684, was still present as a 
• hard political fact, and whose ignoring in essentials would cause 
friction impossible to overcome. Essentially the new charter 
meant only the re-establishment of the colony government with 
certain important modifications in the direction of dependence on 
England. Eighteenth-century Massachusetts was rather a corpor- 
ate colony modified toward the province type than a province 
varying toward the colony type. 

But in form the province charter wrought several striking 
changes. The executive was no longer elective, with power de- 
rived from the representative general court. The king was to 
send over a governor, a lieutenant governor and secretary, com- 
missioned to hold office during his pleasure. The magistrates, 
constituting both the governor's council and the upper legislative 
house, had been changed from the assistants, elected by the general 
court and of practically equal rank and power with the governor, 
to the council, subject to the governor's veto (a point strenuously 
resisted by the agents), and distinctly inferior to him in the exec- 
utive. Its character was thus changed to a minor prerogative body, 
the leadership of the colony having passed from it to the house. In 
respect to the house the change wrought by the charter was 
unimportant practically, but a great gain to the province legally. 
What had sprung up spontaneously at the demand of the rising 
spirit of democracy, but with no foundation in the colonial con- 
stitution, was now given precise authorization, and the powers and 
privileges of the house, already long exercised and reduced to 
custom, were now given express recognition and legality. A 
judicial system should again be set up by the colonial legislature, 
but the appointment of judges should now be not by the people 
or the representative body, but by the governor and council. An 
important step in the reduction of the colony to its proper pro- 
vincial status was the charter's guaranty of appeal from colonial 
courts to the king in council, in personal actions of a certain value, 
a final denial of the colony's long-maintained claim of jurisdic- 
tional self-sufficiency. The questions were now set at rest which 
had risen as to the legality of the colonial courts and their right 
to inflict punishments, such functions having rested hitherto upon 
an extremely loose construction of a corporation's powers. The 
powers of legislation and finance were now set on a firm founda- 



l8 CONSTITUTIONAL CONFLICT 

tion of constitutional grant. Law was still to be made by the 
general court, but the participation of the representative house 
with the assistants was here expressly provided for. On the other 
hand, the practically absolute power hitherto enjoyed by the gen- 
eral court was subjected to two very substantial limitations. The 
governor was no longer a mere presiding officer of the upper house. 
He received an unqualified veto upon legislative acts of whatever 
sort, becoming in effect a third house of the legislature. More- 
over, acts of the general court must be not repugnant to the laws 
of England, and were made subject to the disallowance of the king 
in council, a power that might be exercised at any time within 
three years, and either for the purpose of cutting off unconstitu- 
tional acts or at the imperial discretion. The power of the purse 
was expressly given to the general court. Hitherto the right to 
tax had rested only on the power of the corporation to assess its 
members, and it might well be questioned whether non-freemen, 
persons not members of the corporation (a category including 
probably a very large majority of the inhabitants), were subject 
to its taxation. The executive function of warranting the issue of 
money from the treasury was given to the governor and council, 
but there was a possibility of future dispute in the requirement 
that this issue be according to acts and rules of the general 
court, while the legislature will be found using this latter power 
to acquire a right of appropriation, and hence more and more 
control over administration. The qualification for the exercise 
of the suffrage had hitherto been membership in the established 
Congregational church. This was utterly done away by the char- 
ter of 1691, and in its place was the requirement of the possession 
of property, landed or personal. This was the legal expression of 
what had already become actual, a change of basis in the provin- 
cial society from church to wealth. It may well be questioned 
whether the change meant any substantial widening of the suf- 
frage, but it was significant of the secularizing of Massachusetts, 
the loss of its peculiar theocratic polity, a step in its assimilation 
to the normal province. 

For many reasons the charter was to be regarded as a 
gain to the province, giving legal validity to practices found 
convenient but hitherto having insecure legal foundation. Never- 
theless the inclusion of prerogative elements, especially the im- 
perial governor with his negative upon laws and elections, made 



IN PROVINCIAL MASSACHUSETTS. I9 

it seem very far from the desire of the province. Two of the 
agents, Cooke and Oakes, steadfastly opposed its acceptance 
while in England. Mather was brought, though with sincere 
reluctance,^ to accept it as the best Massachusetts could hope for 
from a king more fond of efficiency than of liberty in governments 
subject to him; and after doing his best to secure its modification 
according to colonial ideas, accepted the inevitable and endeavored 
to recommend it to the people of the province. The people them- 
selves were divided in sentiment, but universally saw that resist- 
ance was out of the question, and that it was for them to make 
the most of the privileges that had been granted, in order to 
win back the substance of powers they had nominally lost. Ac- 
ceptance was made easier by the first appointmicnts, for they were 
all made upon Mather's nomination : Governor Phips, a native 
of Massachusetts, of whose exploits in Nova Scotia she was 
proud, an intimate and admiring friend of Mather's ; Lieutenant- 
governor Stoughton and Secretary Addington, men who had 
been prominent in the old colony government, and whose ap- 
pointment might be expected to gratify the province and make 
it think that it was enjoying a considerable degree of self- 
government under provincial forms ; the council of twenty-eight, 
with one exception Massachusetts men,^ and including all the 
leading men of the colony except the implacable partisans, Cooke, 
Oakes, and Danforth, who persistently refused to accept and 
support the new regime. 

The charter in action was the fundamental law of the prov- 
ince, to which every statute must conform or suffer disallowance 
from home. But superiority was claimed for it not only over colo- 
nial acts of government, but over imperial as well. Even a gov- 
ernor's instruction, however late or peremptory in terms, was 
understood to have no power to compel the provincial govern- 
mental bodies, so long as they could base themselves on a charter 
provision to the contrary. 

Under these conditions, as time passed, the provincial char- 
ter came to be cherished with something of the reverent regard in 
which the colonial charter had been held. The threat of its 
abrogation was a club held over the province throughout the 

' Palfrey, IV. 82. 

^ Hutchinson, Massachusetts, II. 20, 21, note. 



20 CONSTITUTIONAL CONFLICT 

period. From time to time vague intimations were given by the 
secretary of state or the board of trade that certain misdemean- 
ors of the province would, if continued, be regarded as "worthy 
the consideration of the legislature," that is, that parliament would 
take upon itself the altering of the province constitution. However 
useful as a threat, such action was improbable and almost im- 
practicable, and the threat ceased to have weight. The prerog- 
ative bodies, privy council and board of trade, were jealous of 
the intrusion of parliament into their peculiar field of colonial 
affairs, and would therefore be very reluctant to call in its aid 
except as a last resort. Moreover, competing statesmen, who 
as secretaries of state or opposition leaders would have the respon- 
sibility of dealing with the colonies as a party issue, were very 
reluctant to introduce a matter of such delicacy, which might 
overturn the balance of parties in unexpected ways. So Walpole 
in 1729 would be very slow to accede to Newcastle's desire of 
parliamentary action to settle the salary controversy, lest the issue 
be made use of for party purposes by his rival. 

In 1725 an Explanatory Charter was granted upon the rec- 
ommendation of the board of trade. Shute's quarrel with the 
house had revealed two points upon which the charter was am- 
biguous and upon which the home government was now ready to 
declare its mind : the governor's right to veto the election of 
speaker of the house and his right to control the adjournment of 
the general court. The charter was accepted by the court in for- 
mal resolve,^ but such , action was wholly unnecessary for its 
validity, and only meant the asquiescence of the province in the 
inevitable, glad to get off with so easy a punishment for its mis- 
deeds. 

Such then was the constitution of Massachusetts, legally a 
grant of governmental powers by the king out of his preroga- 
tive, but in the view of the province partaking largely of the nature 
of a direct constitutional compact between the king and the peo- 
ple of Massachusetts. The people owed allegiance to the king, 
and would remain his loyal subjects (under their own colonial leg- 
islature and local self-government) so long as his part of the com- 
pact was fulfilled, viz., the protection of the people and the preser- 
vation to them of their liberties as Englishmen. It was the attempt 

^ 1725-26, c. 467, Acts and Resolves of the Province of Massachu- 
setts Bay, X. 738. 



IN PROVINCIAL MASSACHUSETTS. 21 

to ignore this direct constitutional relation between king and 
Massachusetts people, the attempt to reduce Massachusetts to the 
condition of a mere dependency, the exercise of the sovereign 
power of the British parliament to break the Massachusetts char- 
ter in 1774, that brought on a revolution. Massachusetts took up 
arms in 1775, not to win new powers, but to resist the encroach- 
ments of parliament upon what the province had come to regard as 
her constitution, and the system to which she resorted in the in- 
terregnum of war, the constitution which she set up in revolution 
to fight for and defend was the system set forth in the charter 
of 1691. 



CHAPTER III. THE PREROGATIVE BODIES. 

The provincial governor must be viewed in his twofold ca- 
pacity of head of the province and agent of the home govern- 
ment. Under the old charter the governor had derived all his 
power from the colony, and had bestowed practically all his efforts 
upon the service of its interests. The home government had then 
lacked an efficient agent for the execution of its will, and the 
purpose of curing this defect had been the chief reason for the 
changing of the system, from the old charter to the new ; hence 
the character of the new governor's office is especially worthy 
of study. 

But these two differing, and sometimes opposed, aspects of 
the governor's office will not be studied separately. Rather, they 
must be borne in mind together as constant conditions of the 
problem, while the governorship is studied as an institution of 
government, in its own make-up and in its relation with other 
institutions. Occasions arose when the governor as head of 
the province had a different motive and policy from the gov- 
ernor as agent of the home government, when the interests of 
colony and empire apparently clashed. For the outcome of this 
conflict it must be observed at once that, while in form and func- 
tions the governor appeared primarily as the head of the province, 
yet by reason of the source of his power and the means by which 
he was controlled he was primarily the agent of the empire. Gov- 
ernmental authority for the province was derived through his com- 
mission from the king and hence he became the proximate source 
of all that made for the prerogative interest in the province, 
both official and political, the source of office and the nucleating 
center of the prerogative party. From yet another point of view, 
he was the king's representative, his viceroy, standing presump- 
tively above parties for the unity of the province in its imperial 
relations. 

The most striking change from the old system to the nev^i 
was the mode of appointment of the governor. No longer sub- 
ject to annual election by the people whom he was to govern, 
he depended upon the commission of the king, continued during 

(22) 



IN PROVINCIAL MASSACHUSETTS. 23 

pleasure. He must have constant regard to the interests of a 
power outside the province, which had made and might unmake 
him. The oaths by which he was bound were framed accord- 
ingly. Besides the oath of office, he must take those of allegiance 
and supremacy, binding him to the Protestant succession in 
England, and yet another, relating to the enforcement of the 
acts of parliament touching the colonies, especially the acts of 
navigation and trade. ^ 

Besides the formal grant of power through the commission, 
the governor received instructions- as to its use, which were pre- 
pared by the board of trade and authorized by the privy council. 
At each appointment a full set of instructions was issued, a quasi- 
constitution, defining the limits within which the prerogative 
might not be encroached upon, outlining the policy which the 
home government desired the governor to pursue upon matters 
in controversy. These instructions did not vary much between 
administrations, except that they showed a constant tendency to 
grow in number and definiteness.^ Additional instructions were 
issued as occasion arose, prescribing the governor's course of 
action upon special matters either of imperial administration or 
of colonial legislation. The instructions were regarded as of 
force only between the two parties giving and receiving, the 
home government and its agent. The governor might be in- 
structed to insist upon the assembly's establishing a salary, but 
the assembly was regarded as within its rights in refusing, how- 
ever much the governor might expostulate against their presump- 
tion in refusing the king's express wish. As to the governor's 
own obedience, it rested largely with his official conscience. Of 
neglect in an important matter he was likely to be admonished 

^ Greene, Provincial Governor, 55, 68. 

' Greene, 93-96. 

"•Phips received 36, Bellomont 44, Dudley 73, Burgess 78, etc. A 
collection of the commissions and instructions to Massachusetts gov- 
ernors is being prepared for publication by the Colonial Society of Massa- 
chusetts. By the kindness of Mr. Henry H. Edes, Treasurer of the 
Society, the writer has had the opportunity of examining the printer's 
copy, and it is to this forthcoming work, which will constitute Volume 
II of the Society's Publications, that reference must be made for that 
whole body of sources, not hitherto in print, with the single exception 
of Dudley's instructions, in Mass. Hist. Soc. Collections, Series 3, Volume 
IX. 



24 CONSTITUTIONAL CONFLICT 

by the secretary of state or the board of trade, but the only means 
of compelHng obedience was a threat of recall and of the loss of 
royal favor, a force which was sufficient to determine in general 
the policy of the ambitious appointee, but which necessarily 
allowed him considerable uncontrolled freedom of obedience or 
disobedience in less important matters. 

More informally, the will of the home government was com- 
municated to the governor through the letters of the secretary 
of state and board of trade. He was instructed to keep them 
minutely informed of all that concerned the execution of his 
commission, the purpose of the colonial legislation sent home for 
approval, and his opinion as to its fitness for royal confirmation. 
The volume and usefulness of this correspondence varied with 
the personality of the incumbent. Bellomont was an indefatiga- 
ble man of business, and his letters were numerous and full of 
information. Shute, at the other extreme, was much complained 
of for his neglect of correspondence, leaving important acts of 
government, the home authorities complained, to be reported to 
them by the public prints,^ and sending letters only at long in- 
tervals. Belcher's letters were numerous and long, but unsatis- 
factory for administrative purposes, being filled principally with 
jealous strictures on fellow officials and with the urging of his 
own claims to royal favor.- 

Theoretically the governor, as an expert on colonial condi- 
tions, and the board of trade, with its wider view of imperial in- 
terests and its information on conditions in other colonies, were, 
through intimate and frequent correspondence, to concert and 
execute a policy which was adapted to the service of both colony 
and empire, to secure a degree of unity among the members of the 
latter, and of uniformity in their procedures. Only in a slight 
measure was this end attained, for there were great difficulties in 
the way of a complete understanding. The lack of a system for 
training officials for colonial service at home and abroad, and the 
thorough grip of the spoils principle on the system of appointment, 
made the personnel unsatisfactory in point of efficiency. The dim- 
inishing influence and significance of the board of trade, and the 
official ignorance and carelessness in reference to colonial affairs, 
exemplified in the Duke of Newcastle as secretary of state, were 

^ Chalmers, Revolt of the Colonies, II. 26. 

^ Many are printed in Mass. Hist. Soc. Collections, Series 6, Vol. VI. 



IN PROVINCIAL MASSACHUSETTS, 25 

combined with the physical obstacles to communication arising 
from great distance and irregular despatch service, to make im- 
perial control of the empire's servant in the colony less and less 
efficient. The result was a growing predominance in the gov- 
ernor of what was designed to be his minor characteristic, 
that of servant of the province. The tightening of the reins 
during and after Halifax's administration of colonial affairs came 
too late to counteract this tendency, and it is not without signifi- 
cance that the time of this change is very nearly coincident with 
that of more energetic colonial resistance to dictation from Eng- 
land, which led shortly to the Revolution. . 

The governor had important relations with legislation and 
with the administration of justice, as well as the executive 
duties that were more peculiarly characteristic of the office. 
His right to convene, adjourn, and dissolve the general court 
occasioned disputes with the house, which are more conven- 
iently treated in the following chapter. But the governor 
also had positive influence on legislation, both direct and indi- 
rect. He was accustomed to send messages to the house on 
all manner of occasions, urging legislation upon specific mat- 
ters, showing particulars in pending legislation to which he 
should refuse consent. Moreover, at the beginning of each 
session and on other important occasions he would summon 
the house to the council chamber and make an address to the 
joint assembly, summarizing the military situation if it were a 
time of war, imparting information, especially letters from the 
home government or other colonies, recommending certain mat- 
ters for their consideration, (frequently the "low" condition of 
the treasury, or the "distressing" state of the currency), with a 
"view to legislation, — as it were a speech from the throne. These 
speeches were at first informal. For example, Stoughton on one 
occasion directed the attendance of the house in the council cham- 
ber and recommended to their consideration the "public state of 
the province," touching the war, the lack of money in the treas- 
ury, the expiration of certain acts which should be continued. '^ 
After Bellomont's arrival the procedure became more formal ; 
the governor gave his speech in writing to the house after deliv- 

^ Court Records, VI. 450. This is the name used to designate the 
manuscript records of the council, when acting in its legislative capacity. 



26 CONSTITUTIONAL CONFLICT 

ery, and received their formal answer.^ Its influence on their 
action was Httle more than that of a president's message of the 
present day to a Congress having an opposition majority. On 
party issues his recommendations were ignored, on other matters 
an insistent public opinion could obtain concurrent action by 
governor and house. 

The governor's indirect influence on legislation was prob- 
ably considerable, varying with his personality. He presided in 
council in both legislative and executive sessions, and his proper 
constitutional domination in the council, when sitting in its exec- 
utive capacity, must have given his opinions great weight with 
the same body when legislating. Bellomont and Dudley assumed 
a position of leadership in the council's legislative deliberations ; 
Bellomont concerning" himself in debates, proposing bills and other 
business, preventing their action in his absence except as a com- 
mittee of the whole ; Dudley forcing business to suit himself and 
dominating men of weaker will.^ This right of interference in 
council was claimed and exercised by the governors throughout 
the provincial period, notwithstanding an adverse opinion deliv- 
ered by the law officers of the crown. ^ 

By charter an absolute veto was conferred upon the gov- 
ernor, upon all acts of the general court, v/hether legislative or 
elective. Hence we may regard him as not only influencing the 
upper house, but as constituting by himself a third house of the 
legislature. The use of this veto was not sparing, but was infre- 
quent because unnecessary. Non-concurrence by council, under 
the governor's influence, of objectionable measures of the house, 
sifted legislation very thoroughly, and the resulting number of 
actual refusals of consent is surprisingly small, considering the 
frequent differences of opinion. There was a considerable body 
of possible legislation to which the board of trade instructed the 
governor to refuse his consent, and the expectation of that veto 
undoubtedly prevented the useless passage of repugnant meas- 
ures!"* The time during which the governor might consider bills 
was not fixed in the charter or instructions. As the veto was 
not a suspensive one, to be overridden by an extraordinary major- 

' E. g., Feb. 14, 1701. Court Records, VII. 144. 

" Sewall's Diary, 5 Mass. Hist. Soc. Collections, VII. 47. 

' Chalmers, Opinions, 238. 

*E. g., Court Records, VII. 415. 



IN PROVINCIAL MASSACHUSETTS. 2"] 

ity, the importance of the time of the veto appears in the possi- 
bihty that the house could compel the attachment of his signature 
to favorite measures by withholding his allowance. They were 
accustomed to put ofif the consideration of such allowance until 
the last day or two of the session, when presumably the leg- 
islative and elective acts of the assembly had been completed 
by the governor's signature, which was usually affixed shortly 
after the concurrence by the council. The house tried to 
establish the principle that signatures should always precede 
allowance, but vigorous protest was made by the governor, with 
final success. In the salary settlement of 1735 it was agreed that 
his allowance should be granted at the beginning of the session. 
As Greene has pointed out for the provinces in general,^ 
the powers of the governor which brought him into connection 
with the judiciary, were of three sorts. By the charter he was 
to constitute courts of justice, and to appoint judges, while 
by statute he was given some judicial functions to perform. 
But as to the extent of these powers Massachusetts differed 
from other provinces. The power to erect courts was exercised 
by the general court, which by a series of statutes^ (after 
repeated disallowance and modified repassage) established a 
system- of common law courts, and in this establishment the 
governor participated merely as one branch of the legislature. A 
chancery court, however, being peculiarly for the exercise of the 
king's super judicial prerogative, was not allowed to be set up 
by the colonial legislature. Several attempts were made to give 
equity jurisdiction to the governor (or chancellor appointed by 
the governor) and eight of the council,^ later to three commis- 
sioners appointed by the governor and council ;* but these acts 
were disallowed. Attorney-general Northey being of opinion that 
the queen could set up an equity court in Massachusetts, but the 
general court could not do so by the terms of the charter.^ Phobate 
jurisdiction, on appeal from the county probate judges, was given 
by statute*^ to the governor and council. Further statutory juris- 



^ Greene, Provincial Governor, Chapter VII. 

'' Act 1692-3, c. 33 ; 1697, c. 9 ; 1699-0, cc. 1, 2, 3, 4 ; 1701-2, cc. 5, 6, 7. 

''Act 1692-3, c. 33, § 14. 

*Act 1693-4, c. 12. 

° Chalmers, Opinions, 195. 

"Act 1696, c. 8. 



28 CONSTITUTIONAL CONFLICT 

diction of the same body was over cases of marriage and divorce/ 
cases of embezzlement by regimental officers, with power to im- 
pose fines and to imprison,- and cases of creditors' petitions, with 
power to issue commissions of bankruptcy.^ Admiralty jurisdic- 
tion was supervised by the governor through his special commis- 
sion as vice-admiral, though after 1702 the vice-admiralty court 
was held by a judge appointed by the crown. 

But the appointing and commissioning of judicial officers 
was the chief function which brought the governor into connec- 
tion with judicial affairs. Here, as in most of his executive 
functions, he was controlled by the advice and consent of the 
council. It was the settled policy of the home government that 
judicial offices in the colonies should be held not on good be- 
havior but during pleasure.* Tenure of office was generally 
permanent, removals being very rare. As all commissions be- 
■came inoperative upon a demise of the crown, and as it not 
infrequently happened that the new sovereign sent a new gov- 
ernor, there was considerable opportunity for executive policy 
to impress itself upon the judiciary by appointment, without the 
abuse of arbitrary removals. Belcher was the only governor 
with a bad name on this account. He maintained that the change 
of governor had the same effect in terminating commissions as 
the change of sovereigns, and took the opportunity to make 
sweeping changes in the personnel of the judiciary to serve his 
own purposes, but this example was not followed by later gov- 
ernors.^ 

But the most characteristic functions of the governor were 
executive. Besides his duty in general to see to the enforcement 
of the law, all governmental matters which were not regulated 
by legislation were for the governor and council to attend to. 
The description of this field was accomplished mostly in the char- 
ter, by the withdrawal of certain things from the competence of 
the legislature, to an extent also through the delegation of func- 



'Act 1692-3, c. 25. 
'Act 1701-2, c. 14. 
"Act 1713^, c. 14. 
* Greene, Provincial Governor, 134-6. 

° Shirley attempted it, but readily gave up the point upon the refusal 
of the council to join. Hutchinson, II. 386, note. 



IN PROVINCIAL MASSACHUSETTS. 2^ 

tions by the legislature, and also by the imposition of duties 
from without. The provincial period saw the legislature grad- 
ually encroaching upon this field, attempting either to transfer 
a function from the governor to itself, or to control him in its 
exercise. 

The administrative powers of the governor were of the sort 
which was customary in that office.^ The appointment of civil 
officers by the executive was far less extensive in Massachusetts 
than in other provinces, however, for the charter secured to the 
general court the right to select all except those pertaining to 
the courts,- an exception which the legislature confined as nar- 
rowly as possible, as the follov/ing chapter will show. But even 
when thus limited, the exercise of the appointing power seemed 
likely at first to fall into the hands of the council, the popular 
part of the executive. Under Phips^ and Stoughton the council 
assumed the right to elect even the above mentioned judicial 
officers, leaving to the governor only the right of confirmation 
or refusal. With the coming of Bellomont, however, this error 
was corrected and the initiative was reassumed by the governor.* 
Bellomont and all subsequent governors named the officers, and 
the function of the council was reduced to the evident intention 
of the charter, mere acceptance or rejection. 

One of the chief sources of the governor's power in admin- 
istration, as described in the charter, was his right to order the 
issue of money from the treasury. The claim of the house to a 
primal and superior control over the issue of warrants is so 
im_pcrtant for the constitutional relations of governor and house 
that a separate chapter is devoted to its discussion. 

By statute, miscellaneous administrative functions were be- 
stovv'ed upon the governor, to be exercised with the advice and 
consent of the council, principally in the form of licensing the 
performance of certain acts which needed administrative con- 
trol, e. g., the erection of wooden buildings within the Boston 



^ Greene, Chapter VI. 

" "Judges Commissioners of Oyer and Terminer Sheriffs Provosts 
Marshalls Justices of the Peace and other Officers to Our Council! and 
Courts of Justice belonging." Acts and Resolves, I. 12. 

^ Executive Council Records, II. 206. 

* Executive Council Records, III. 41. 



30 CONSTITUTIONAL CONFLICT 

fire limits/ the carrying- on of trade with the Eastern Indians,^ 
the removal of inhabitants from the frontier towns in time of 
war.^ The court was also inclined, especially in the early part 
of the period, to use the governor and council for other pur- 
poses, such as the appointment of impost commissioners,* and 
truck-masters for the Indian trade,^ but it later preferred to 
perform such functions directly. 

The issuance of ordinances, a quasi-legislative power, was 
necessarily in the hands of the governor and council, to be used 
in cases of emergency, as supplementary to legislation by the 
general court. It was also used by special grant in advance by 
the court, but very slightly, and less and less as time went on. 
The court was inclined to do by itself all the legislating that 
needed to be done, leaving as little as possible to the dreaded 
executive. The right to issue proclamations belonged, of course, 
to the executive, but it was a question how far the exercise of 
that power could be controlled by the court. Fasts and thanks- 
givings were proclaimed by the governor by the advice and con- 
sent of the council, usually at the express desire of the house. 
Indeed, during the first eight years such days were set apart by 
regular legislative resolve, originated by the house, concurred in 
by the council, consented to by the governor. But after 1701 
this irregularity was avoided until 1721, when, in the midst of 
the controversy with Shute, the representatives (March 16) or- 
dered a committee to join with a committee of the council in 
preparing a proclamation for a fast day. The council, in its 
legislative capacity, non-concurred, and declared that such par- 
ticipation by the house was contrary to precedent. In its exec- 
utive capacity the board -had prepared a proclamation which it 
declared, "will be communicated to the House." But the repre- 
sentatives insisted on actively participating-, saying "that if 
appointment of such days has not the sanction of the Court, 
persons are not liable to be punished if they work or travell 
thereon, which will tend to a great disorder."® The council 

'Act 1692-3, c. 13. 

'Act 1713-4, c. 13. 

' Act 1694-5, c. 25. 

*Act 1692-3, c. 5. 

'Act 1699, c. 13. 

"Court Records, XI. 115. 



IN PROVINCIAL MASSACHUSETTS. 3 1 

again supported its position by argument, and announced that 
the governor, with the advice of the council "and at the instance 
of the House," had ordered proclamation of a fast. The house 
protested that it had "made no such instance, but voted a com- 
mittee to join with a committee of the Honorable Board to pre- 
pare the draft of such a proclamation." But in spite of this 
protest the proclamation was issued as an executive act. In June 
of the same year the house voted that "13 July be appointed as 
a day" of fasting, "and that His Excellency be desired to issue 
out a proclamation accordingly," an evidence that the house had 
given up its claim. The assumption of the house figured in Shute's 
complaints to the home government, and the law officers of the 
crown, as might have been expected, declared that the house had 
no right to participate in the governor's function of issuing 
proclamations. 

Together with these miscellaneous administrative duties of 
the governor as executive head of the province may be mentioned 
a few that came to him as the imperial agent. He was instructed 
to urge certain matters of policy upon the assembly, acting, as 
it were, in the capacity of imperial adviser in legislation. He was 
also made responsible in a general way for the execution in his 
colony of the parliamentary acts of trade and navigation. Be- 
ginning with the administration of Bellomont, he was instructed 
that forfeiture of office and other marks of the king's displeasure 
would be the consequence of failure to observe these acts, so 
far as was due to his wilful fault or neglect. All officers of the 
admiralty and customs therefore were to receive from him due 
encouragement.^ He was to watch over the king's interest in 
forest trees that were fit for masting the royal navy.^ Other 
instructions^ requiring him to transmit a census of planters, of 
inhabitants, slaves, etc., and a yearly account of their increase 
and of the number fit to bear arms, together with a particular 
account of the defences of the province, illustrate the function of 
the governor as the home government's general source of infor- 
mation. 

The governor was military head of the province. It was 
by him that militia officers were appointed and commissioned, 

^Bellomont's 43d instruction. 

" Bellomont's additional instruction of Jan. 19, 1700-1. 

'Dudley's 39th and 60th instructions. 



32 CONSTITUTIONAL CONFLICT 

and the militia commanded. In time of war, with a regular 
military force in existence, whether raised by impressment of 
militia or by voluntary enlistment, the governor was commander- 
in-chief, with power to build fortifications, to impress men and 
ships and other property, to administer military law by com- 
missioning courts martial, and, most important, to direct mili- 
tary operations. Here he was free from the control of the coun- 
cil, except as to the commissioning of courts martial. In all 
these matters, however, his nominal legal freedom of discretion 
was subject to qualifications. How far the need of money to 
carry on military operations necessitated co-operation of the tax- 
granting body, and consequently subjected him to its dictation, 
is so large a matter as to require treatment in a special chap- 
ter. The navy of the province was a very slight affair, usually 
no more than a galley or snow, but it also was under the gov- 
ernor's command, as was the royal war-ship stationed at Boston, 
though the subordination was not clearly recognized in the latter 
case, and friction easily resulted, as in the case of Phips and 
Captain Short of the Rose frigate.^ 

Charged with these various functions, legislative, judicial, 
administrative and military, the governor was subject to limita- 
tions and checks from various quarters. In practically all his 
functions which were not military, the governor's action required 
the advice and consent of the council, a body in whose consti- 
tution popular election played a large part. By his veto the gov- 
ernor could exclude therefrom men who were personally or polit- 
ically obnoxious, but having no initiative in its appointment he 
could not secure the aid of men whom he desired, if they were 
displeasing to the house. Naturally the council tended to be- 
come a colorless body, without positive influence on the governor's 
action, but providing a conservative force which would keep him 
from unpopular extremes. 

The chief positive force which acted on the governor was the 
home government, on which he depended for appointment and 
continuance in office. Through his commissions and instructions 
and the more informal communications of the secretary of state 
and the board of trade he was constantly in receipt of their sug- 
gestions and commands, positive and negative. The chief nega- 

' Palfrey, IV. 147. 



IN PROVINCIAL MASSACHUSETTS. 33 

tive force which operated on the governor, so as to hmit his 
opportunity and capacity to follow the positive pressure from 
home was the house. As will be seen in chapters V, VI, and 
VII, the hold of the house upon the province purse-string meant 
that in divers ways they were able to win a considerable measure 
of control over his action in the performance of his peculiar 
functions, legislative and financial, and even administrative and 
military. The governor's actual course of conduct was the result- 
ant of all these forces, positive and negative, and varied with the 
degree of pressure applied from home or from the house. 

The governor's personal character also was of influence in 
determining the strength of resistance or of co-operative force 
he could offer against outside pressure. The situation demanded 
an almost impossible combination of qualities. In the first place, 
under the spoils system of appointment, a certain amount of "inter- 
est" with the great ones about the court must be possessed by an 
individual before he could be considered as a candidate for the gov- 
ernorship. This was likely to mean either that he was an ex-soldier 
whose services could thus be rewarded in a cheap currency, like 
Phips or Burgess or Shute, — and here there was little likelihood 
of his possessing the qualities of a successful administrator ; or 
that he was a courtier, skilled in the arts of flattery and self- 
promotion, perhaps with political morals not stern, but easily 
adaptable, like Belcher, and in a less degree Dudley. Massa- 
chusetts, however, suffered far less than other provinces from the 
spoils system. Not a single one of her governors played the role of 
a plundering proconsul to her pecuniary loss, and her two ex- 
soldiers, Phips and Shute,^ were faithful to their duty, accord- 
ing to their blundering comprehension of it. Belcher and Dud- 
ley were self-seeking in their ambitions, but both were Massa- 
chusetts men, and tried to serve themselves through serving, not 
"disserving," the province. 

Two qualities must be sought among those who had suffi- 
cient "interest" to be regarded as candidates, — efficiency and 
amiability. The governor should be an able man, to conduct the 
administrative and military aiTairs of the province successfully, 
to keep the province true to its allegiance and dependence on the 



^ Burgess soon after appointment sold his commission for a thousand 
pounds, and never came to Massachusetts. 
3 



34 CONSTITUTIONAL CONFLICT 

crown, and turn Massachusetts to some account to England in 
trade or as a producer of raw materials for her manufacture ; and 
he must be resolute to thwart the attempts of the house to en- 
croach on the prerogative, preserving the dual nature of the gov- 
ernment, with the , governor as a branch co-ordinate with the 
house. But at the same time he should be personally or politically 
agreeable to the province, in order that their willing co-operation 
might be secured in defence, that their natural tendency to en- 
croach on the office might be checked by personal regard or re- 
spect for the incumbent, that something positive might be ob- 
tained from them in legislation, in conformity with imperial 
desires of uniformity and efficiency in administration among the 
various provinces. Four of the ten men appointed governor were 
natives of the province — Phips, Dudley, Belcher and Hutchinson 
— and Shirley had identified himself with it by a residence of ten 
years. Including his term and the time that lieutenant-govern- 
ors were acting governors, the province was under the command 
of a Massachusetts man about sixty out of the eighty-two years of 
the period. True, the politics and not the nativity of the gov- 
ernor was the essential thing, and the native-born governors en- 
countered more hostility on the average than the foreign, their 
prerogative principles adding an element of grieved disappoint- 
ment to the popular dislike of the governor qua governor. But 
still the appointment of a native was a sign that the home govern- 
ment desired to secure able service by men who presumably would 
know the conditions and have at heart the real interests of the 
province, upon the understanding that the real interests of the 
province required its close dependence upon England. 

Of the Englishmen sent over, Bellomont was a liberal, who 
took the popular side in the Leisler controversy in New York ; 
and while in Massachusetts he identified himself with the Puritan 
party. ^ Moreover, his social position flattered the province's 
sense of importance. Shute was a Dissenter, brother of Lord 
Barrington, and therefore acceptable to the province, as was Bur- 
net for being son of the famous bishop. 

The degree of efficiency secured in the Massachusetts gov- 
ernors was at least as great as was the average among the prov- 
inces. Bellomont and Shirley were distinct successes, and without 



'Hutchinson, II. 106-7. 



IN PROVINCIAL MASSACHUSETTS. 35 

doubt Burnet would have given the province an administration sat- 
isfactory to all concerned had he not been forced by the circum- 
stances of precisely that time to come to a deadlock with the 
general court on the salary question. Each one of these three 
had previous administrative experience, Bellomont at home and 
in New York, Burnet in New York, Shirley as naval ofificer in 
Boston. Dudley, as former ally of Andros and as supporter of the 
prerogative his father would have opposed, was disagreeable to 
the people, and utterly failed in two or three policies which he 
urged the court to accept; but he made an excellent reputatioti 
in civil and military administration. He had served as president 
of the Council of New England in 1686, as chief justice in New 
York, and later as lieutenant-governor of the Isle of Wight ; but 
apparently he always held before his eyes the governorship ot his 
native Massachusetts as the position which he most desired. 
Belcher's "servile and flattering tone to those above him . . . 
his arbitrary manner to those under him,"^ both used for the 
purpose of winning for himself place and power, had no good 
results for the province or for the empire; therefore he can 
hardly be called a success, especially considering his willing- 
ness to compromise the salary question, which during his ad- 
ministration was settled adversely to the contention of the home 
government ; nevertheless he did win a victory for the prerogative 
upon the claim of the house absolutely to control issues from the 
treasury. Phips, by reason of ignorance and lack of self-control, 
and Shute, for lack of tact and patience and resolution, must both 
be accounted failures, though in neither case was there lack of 
good intention to serve the empire and incidentally the province,' 
Shute was unfortunate in winning the cordial enmity of Elisha 
Cooke, for several years the unquestioned leader of the popular 
party ; thus, in his case, a personal spite was added to the political 
struggle, and Shute's administration saw nearly all the consti- 
tutional disputes raised and intermingled, and little progress made 
in settling or disentangling them. The ill-success of Pownall and 
Bernard in dealing with the questions which arose in their admin- 
istrations belongs rather to revolutionary history than to this 
study of the province ; and Hutchinson also, while admirably 
equipped for the position as administrator, came at a time when 



^ C. C. Smith, in 6 Mass. Hist. Soc. Collections, VI. xxii. 



36 CONSTITUTIONAL CONFLICT 

the peaceful adjustment of differences was no longer possible, and 
when the situation demanded a man of force. 



The governor's council may properly be described among 
prerogative bodies, though its attitude was somewhat variable, 
as will be seen in the accounts of the salary and treasury con- 
troversies. It sat at times as a legislative body, combining with 
the house and governor to form the general court; at other times 
as an executive body, advising and consenting to the governor's 
executive acts. But what made it a peculiar institution was its 
elective character. Not appointed by the king on nomination by 
the governors, as in most provinces, the council in Massachusetts 
was constituted through annual election by the general court ; this 
as all other acts of that body being subject to the governor's veto. 
The election was by joint ballot held on the last Wednesday in 
May, by a court composed of the council of the past year and the 
newly elected house. The procedure in the election was regulated 
by province law. The charter of 1691 named the council for the 
first year, Mather having the privilege of making out the list ; but 
thereafter by charter provision eighteen of the twenty-eight mem- 
bers were to be inhabitants or proprietors of land in what had been 
the Massachusetts Bay Colony, four in the old Plymouth Colony, 
three in what had been the Province of Maine, and one in the ter- 
ritory called Sagadahoc, to the east of the Kennebec river. The 
remaining two were elected "at large," usually from the old Bay 
Colony. The election was at first from a double list, nominated ap- 
parently by informal ballot ;^ but from Sewall's reference to the 
election of 1695 — "voted but for eighteen at first"^ — it would ap- 
pear that nomination of a double list was soon dispensed with. 
This was natural, considering that the election was usually a 
mere re-election of the former council, and a double list would be 
inconvenient and useless. An attempt by the house in 1703 to 
require a majority vote for every councillor, was thwarted by 
Dudley's veto. The governor's power of vetoing councillors- 
elect was used but sparingly. Only one was rejected during the 
first ten years. Dudley, it is true, at his first opportunity in 1703, 
rejected five, and at other times evidenced in this way the opinion 

^ Acts and Resolves, VII. 15. 
" Sewall's Diary, I. 406. 



IN PROVINCIAL MASSACHUSETTS, 37 

which he expressed in a letter home, September 15, 1705 : "It is 
every day more apparent that nothing will proceed well here till 
her Majesty will please to name her own council, the best men 
in the province can have no share in the civil government till 
then."^ But in all the first forty years of the provincial period 
there were only twenty-four cases of veto on council election, 
and five of these were on Elisha Cooke and six on Nathaniel 
Byfield on various occasions. These men were repeatedly chosen 
by the assembly and rejected by the governor, for what was from 
one point of view patriotic opposition, from the other factious 
obstruction. 

If the governor could veto a patriot, the succeeding house 
could drop a prerogative man ; yet the house was very moderate in 
its exercise of this political control. For example, after the stub- 
born contest between the two houses on the salary question, 
the house dropped only four of the preceding council, which was 
no great change in a body numbering twenty-eight. Yet this was 
the most striking case until the revolutionary time. 

The influences of the governor and house would combine to 
keep in the council men of moderate opinions and to exclude ex- 
tremists. Inevitably this moderation, which enabled one to keep 
in office between the two fires, must have degenerated in some 
cases into insignificance. Yet on the whole this body contained 
a good proportion of the substantial men of the province, men 
whose wealth and powers of judgment gave them weight in the 
community. The council became the conservative body, the 
buffer between the contending governor and house. . Unless 
special offence was given to the one or the other, the councillor 
was fairly sure of a permanent tenure of office. Emoluments 
were inconsiderable. The five shillings a day,^ (after 1726, ten 
shillings),^ was only paid during the session of the general court; 
the councillor's executive services were unpaid. But he enjoyed 
exemption from certain burdens of private citizens, such as the 
poll tax,^ and training.'' 



^Palfrey, IV. 255. 

'Acts and Resolves, I. 100. 

' Ibid, II. 406. 

* Act 1692-3, c. 4. 

'Act 1693-4, c. 3, § 12. 



38 CONSTITUTIONAL CONFLICT 

Membership in the council was not regarded as incompatible 
with the holding of judicial or executive office. Not to speak of 
military officers, of whom there were always several in the council, 
special commissioners for various executive purposes — commis- 
sary, diplomatic, and financial — were frequently members of the 
council; also many of the judges of the superior and inferior 
courts. The governor was always present in council meetings, 
both executive and legislative. It was a question whether the other 
two crown officers — lieutenant-governor and secretary — were 
not ex ofUcio members of the council and entitled to vote. Hutch- 
inson'^ cites a minute^ of the board of trade, adopted just before 
the charter passed the seals, to prove that such was the intention 
of the home government. Such also was the practice in the old 
regime before 1686. Accordingly, during the first year of the 
charter Lieutenant-governor Stoughton sat and voted in council, 
though not named a councillor. But in 1693 the assembly chose 
to prepare for the possible exclusion of future lieutenant-govern- 
ors or secretaries who might be obnoxious, and proceeded to elect 
the then incumbents of those offices to the council. Accordingly, 
it was supposed to be by virtue of their election and not ex officio 
that Stoughton and Addington long served in council. Stough- 
ton's successors — Povey, Tailer, and Dummer — were accus- 
tomed to attend the council, but did not vote except in those years 
in which they had also been elected. Phipps, the lieutenant-gov- 
ernor in 1730, was forbidden by Belcher even to sit in the council 
unless elected. In 1767 Lieutenant-governor Hutchinson, hith- 
erto active in council by virtue of repeated election, was dropped 
out by the house. In the second session of that year the house made 
formal protest against his being allowed to act or even sit in coun- 
cil, and they won their point.^ 

The functions of the council need little description. It shared 
the executive functions of the governor, and the legislative of the 
house. As a part of the executive, it was a miniature privy council. 
Most of the governor's non-miHtary acts required their "advice and 
consent," a passive function in which they had no initiative. They 
were expected only to prevent the governor from making an inex- 

* Hutchinson, III. 174. 

^ Trade Journal, August 20, 1691, Lieutenant-Governor to have first 
place in the council "and at all times to have a vote there." 
'Hutchinson, HI. 175. 



IN PROVINCIAL MASSACHUSETTS. 39 

pedient use of his discretionary powers, or from unconstitutional 
stretches of them. This sort of business was miscellaneous and 
very various ; for besides the ordinary functions of appointing 
civil officers, warranting the issue of money from the treasury, 
and executing functions created by legislative act, it was to in- 
clude the meeting of emergencies, the performance of all acts of 
government not otherwise provided for. 

The council might do executive business at any time, at 
any meeting called by the governor, with the charter restriction 
that special notice seven days previous must be given when judicial 
officers were to be appointed. Such were called "general council" 
meetings, but had no other special power or importance. A quo- 
rum of seven was required by charter, but the average attendance 
was twice that number, except during recesses of the general 
court, when the members from Boston and vicinity were the main 
reliance for forming a quorum. The usual place of meeting was 
the "council chamber" in the Boston Town House, but the gov- 
ernor might call it whatever he chose, e. g., at his own house, 
or infrequently in other parts of the province when the public 
business took him away from Boston. Its organization as an ex- 
ecutive body was under the governor as chairman and the province 
secretary as clerk. It made frequent use of committees to expedite 
business, standing committees on war and debentures, occasional 
committees on other matters that arose. 

' In case of the incapacity, by death or otherwise, of both gov- 
ernor and lieutenant-governor, it was provided by charter that 
the council should be the executive, to "have full power and 
authority ... to do and execute all and every such acts, 
matters and things which the said governor . . . could law- 
fully do."^ On March 15, 1701, Governor Bellomont died, and 
Lieutenant-governor Stoughton, on July 7. For eleven months, till 
Dudley's arrival in June, 1702, the council was the chief execu- 
tive. Wait Winthrop presided, though not the senior member, 
but all documents requiring the governor's signature were signed 
by at least fifteen (a majority) of the council; that is, neither 
its senior member nor its president, but the council itself in its 
corporate capacity, was administering the government. It was 
a time of quiet, and no important occurrences tested the efficiency 

^ Acts and Resolves, I. 19. 



40 CONSTITUTIONAL CONFLICT 

of this system. But in 1707 a general instruction was issued by 
the queen that in such cases the senior councillor should be chief 
executive. Nevertheless, in a similar case in 1715, it was the 
council as a whole that assumed the government, regarding the 
province charter as superior even to the later general instruction. 
The interregnum was short (February 4 to March 21) and had 
been caused by a mere accident — the loss at sea of the new com- 
missions necessitated by the demise of the crown. For control- 
ling the council in such cases, provision was made in the instruc- 
tion^ that "the said council shall forbear to pass any acts but what 
are immediately necessary for the peace and welfare of our said 
province without our particular order for that purpose." 

The legislative power of the council was theoretically equal 
with that of the house. Its concurrence was necessary to the 
validity of any act or vote of the general court. It will be seen 
below that in matters financial the house claimed a pre-eminent 
power, attempting to push the council down into the position of 
the house of lords ; denied an initiative and confined to consenting 
or rejecting. Moreover, since councillors could be rejected by 
a subsequent house, they were individually careful not to oppose 
popular measures too strongly or to become too manifestly identi- 
fied with the prerogative interest. For this reason the council was 
politically weaker than the house. On most matters short of a con- 
stitutional issue, however, the two houses stood on an equal 
footing. Moreover, this inclination to yield to the house was 
largely overcome by the governor's presence in the council, pre- 
siding or taking part in debate. Dependent on the house for 
election, they were also dependent on the governor for confirma- 
tion, and the nearer influence was the. more powerful. Greater 
experience in public affairs gave weight to the contribution of 
the council to legislation, especially in the framing of laws and 
the provision of administrative details. Many important meas- 
ures were even originated in the council and concurred in by 
the house, or were framed by a joint committee of the two houses. 
Now and then, from differences between them, an utter deadlock 
ensued, especially in the days of Shute and Burnet, or a bill was 
passed through all its stages in one house and was voted down 
in the other; but more frequently, after one or two readings in 

^ e. g., Dudley's, 3 Mass. Hist. Soc. Collections, IX. 115. 



IN PROVINCIAL MASSACHUSETTS. 4I 

one house, it would be introduced in the other. Messages would 
pass from one house to the other, offering amendments, insisting 
on clauses. Usually a compromise of differences was thus ef- 
fected, often by conference committees, occasionally by conference 
between the two houses. 

The governor's council then was a very different thing from 
the board of assistants which it superseded, notwithstanding their 
superficial resemblances as upper house, executive council, and 
judicial tribunal. The significance of the assistants as the depos- 
itary of the peculiar Massachusetts tradition had passed by a 
gradual but inevitable transition to the house. The change in 
the suffrage qualification based political power upon property, 
not church membership, and it was the propertied people in their 
representative house, not the allied clergy and magistrates speak- 
ing with authority through a board of assistants, that was to 
guide the destinies of Massachusetts. This tendency was in- 
creased by the partial absorption of the council by the prerogative 
interest, which necessarily separated it as a body from the polit- 
ical mind of Massachusetts, in the eighteenth-century conflict of 
the two opposing principles. From the colonial point of view 
it degenerated in two respects. It lost to the house its character 
of a representative of the Massachusetts tradition, becoming a mere 
"other house," unprogressive, opposed to constitutional progress ; 
it had also gone over to the enemy, supporting the governor, 
urging obedience to the instructions of the home government. 
From the imperial point of view it was a convenient instrument 
for introducing a prerogative element into the legislature of the 
province ; but its elective mode of constitution much diminished 
its usefulness, made it weak in opposing the house and vacillating' 
in its support of the governor. 



CHAPTER IV. THE POPULAR HOUSE. 

Massachusetts possessed an advantage over many of the 
provinces, in that she did not have to evolve a representative body 
to counteract the prerogative elements in her constitution. Long 
before the crown had a governor there, the province had a rep- 
resentative house. The conflict which came was not in the char- 
acteristic English form of popular encroachment, gradual and 
tentative, upon the crown, but in the form of an invasion, by the 
governor acting for the crown, of the popular monopoly of gov- 
ernmental power, an invasion that was met by a resistance which 
combined all the strength of Massachusetts seventeenth-century 
tradition and precedent with the inevitably grov/ing idea of self- 
government. 

At the time of the planting of the colony, legislative func- 
tions, as well as administrative and judicial, were performed by 
the assistants ; the great ones of the community, essentially an 
aristocratic body, though dependent upon popular election.^ Dur- 
ing the first five years, however, after Watertown had made its 
protest against taxation for purposes to which it had given no 
consent, we see the development of a new body, whose peculiar 
function it should be to represent the towns individually, which 
should speak the mind of the people of the colony, while the 
assistants v/ere the voice of the Massachusetts Bay Company. It 
is true, the identity of company and colony was the essential fact 
of the Massachusetts colonial constitution, but so far as there 
were two separate ideas, company and colony, each had its char- 
acter emphasized in one of the two bodies whose combined action 
as the general court was that of Massachusetts. Beginning as 
a mere occasional body of conferees or town committees for ad- 
vising the assistants and assenting to taxation, it came soon to 
permanent self-consciousness as a house, co-ordinate with the 
board of assistants in legislation and finance, exercising some 
control over even the judicial and administrative discretion of 
the assistants. 



^ Osgood, The American Colonies, I. 167. 

(42) 



IN PROVINCIAL MASSACHUSETTS. 43 

Under the old charter to some degree, and yet more under 
the new, the house of deputies, or representatives, was the seat 
of the country party, of radicaHsm (or, at least, of progress) as 
opposed to the conservatism of the council ; of democracy against 
the aristocracy of property and intellect there embodied. But 
more important politically was the change wrought by the charter 
of 1691 in the character of the latter body — from the magis- 
trates of the corporation to the governor's council. However far 
the council actually was from the prerogative body it was de- 
signed to be, that very design necessitated the assumption by 
the house of the important function for which the council would 
now be regarded as incapacitated, — that of representing the pop- 
ular will against the encroachments of royalty. The peculiar 
€cclesiastico-political tradition of Massachusetts, as received from 
the fathers and to be continued to future generations, the tradition , 
of a self-determined church-state polity, the Calvinistic common- I 
wealth, must from now on be preserved by the house, since the ■ 
imperialized council was no longer fit to bear that responsibility ; 
the importance of the house was thereby very considerably en- 
lianced. ■ 

By the charter provision of checks and balances the house 
was made dependent in a number of respects upon the royal gov- 
ernor. It was upon his summons alone that a house could meet. 
This function could be exercised by him at his discretion, so that 
he could at all times make use of the advice and assistance in 
government of the representatives of the people. On the other 
Tiand, he might not dispense with their meeting, nor keep a favor- 
able house in long-continued existence by mere prorogation ; for 
the charter required annual elections. As to their privileges while 
meeting, they appear at first to have supposed these to be de- 
pendent upon the governor's will ; for on June 8, 1692, the house 
presented its speaker to him and asked the customary privileges 
of freedom of debate, access to the governor, freedom from arrest, 
"which they expected as their due," and which Phips freely 
granted them.^ But this was never again asked of the governor ; 
presumably it was not after this regarded as dependent on his 
will. 



' Court Records, VI. 223. 



44 CONSTITUTIONAL CONFLICT 

The power of dissolving the house was unquestionably in 
the governor, to be exercised by word of mouth in the presence 
of the assembly, or more frequently by proclamation. It must 
be used every April to make room for a newly elected house. 
Obviously dissolution was a means by which the governor could 
get rid of a refractory house, and as such it was sometimes used, 
e. g., by Shute in 1720 and 1721. But this was infrequent, for 
the reason that the public business would necessitate a new elec- 
tion, and hence the governor could gain by such action only in 
case the house did not possess the confidence of the electorate. 
As elections were annual, this was unlikely, and the chance was 
that dissolution would help rather than hinder the opposition, as 
tending to increase the exasperation of house and people against 
the governor. 

The power of adjourning the general court was given to the 
governor without limitation of time and place. In both of these 
respects encroachment was attempted by the house in its desire 
to have absolute control of its own action. As a matter of course 
each house adjourned itself from day to day and over Sunday, 
by the governor's tacit consent. On a very few occasions the 
house attempted to stretch this power. For example, in 1693 
the house adjourned from Friday, the 17th of November, to 
Tuesday, the .21st, many of its members being necessarily en- 
gaged in committee work. Of this Governor Phips manifested 
his resentment as "an intrenchment on the king's prerogative" 
and the governor's power.^ The representatives sent a com- 
mittee on the 2 1st "to acknowledge their mistake in attempting 
an adjournment of their house without his Excellency's consent 
and craved his pardon, declaring that they should be cautious 
for future of any such practice." Much the same thing hap- 
pened under Shute in 1721, when, because of a Fast Day inter- 
vening on Thursday and owing to the inconvenience of returning 
to business for Friday only, the house presumed to adjourn itself 
from Wednesday, July 12, to the following Tuesday. Shute re- 
buked them when they came together again, reminding them of the 
precedent from Phips's time, showing them the council's unani- 
mous opinion of the irregularity of their conduct. "I am sensible 
you have been amused by some sort of men as if this adjourn- 

' Court Records, VI. 309. 



IN PROVINCIAL MASSACHUSETTS. 45 

ment were a branch of your privileges and liberties and so ought 
not to be parted with, but sure no' just or thinking man that 
reads the constitution of this government as granted by the 
charter can be of that opinion."/ After some evasion the house 
was brought to the still somewhat equivocal declaration, on July 
20, that they "do entirely confess and acknowledge that by royal 
charter Your Excellency the Governor for the time being have 
the sole power and authority to adjourn prorogue and dissolve 
the General Court and the House further acknowledge that Your 
Excellency ought to have been acquainted with the design and 
intention of the House . . . before they did so adjourn, and 
that it was then so designed, but was casually omitted;"^ as if 
the governor's power were only over the court as a whole, not 
excluding the supposed right of the house to adjourn itself. He 
dissolved the court in anger. This whole question was set at 
rest by the explanatory charter of 1725, in the following terms : 
Whereas by the charter of 1691 "no power is granted" to the 
house "to adjourn themselves for any time whatsoever . . 
it shall and may be lawful to and for the Representatives . 
to adjourn themselves from day to day (and if occasion shall 
require) for the space of two days but not for any longer time 
. . . without leave from the Governor first had and obtained."^ 
The further question arose whether the governor's power of 
adjournment included the determination of the place of meeting, 
obviously a matter touching more nearly the convenience and 
freedom of the house ; for removal might be not only for hygienic 
reasons, to escape contagion, but also for political reasons, to 
harrass the house into action or remove them from the influ- 
ence of a certain community. Now all details of the manner 
in which the governor should exercise his right of summons were 
determined by a law of the province, for want of charter provi- 
sion or executive assumption of that regulation, and in the law 
establishing the form for the writs of election, the town house 
at Boston was mentioned as the place of meeting. Here were 
kept the province records, and custom regarded it as the capital 
of the province. Upon this basis the house made its claim against 
Dudley in 1702, Shute in 1721, and Burnet in 1728-9, and in a 



^ Court Records, XI. 195. 

'Ibid, 198. 

^Acts and Resolves, I. 23. 



46 CONSTITUTIONAL CONFLICT 

more notable case against Hutchinson in 1770, that Boston was 
the only legal place of meeting, and hence any change, for example 
to escape the small-pox epidemics, which were not infrequent there, 
required an act of the legislature of equal formality with the 
original act — a pure denial of the governor's right. That act 
of 1693, however, showed on its face, as the governors were not 
slow to point out, that the writ in the act was signed by "I. A." 
(the initials of the then secretary), that it was issued by the sheriff 
of Suffolk County, and was addressed only to the selectmen of 
Boston, and that therefore "those words in the writ" (estab- 
lishing the Boston town house as the place of meeting) "were 
mere form and like other words in it exempli gratia only." The 
strength of the position of the house, we must therefore conclude, 
was not in law, but rather in the custom of the province in favor 
of Boston, which ought to be broken only for some extraordinary 
reason, and then by the legislature. 

In August of 1 72 1 the house and council passed a vote to 
which the governor refused his consent : Resolved, on account 
of the small-pox raging in Boston, "that the present Great and 
General Court or Assembly be removed to Cambridge . . , 
to such time as His Excellency thinks fit." Shute expressed him- 
self as willing to grant the removal by executive act at the request 
of the court, but said, "It will be giving up the King's preroga- 
tive to consent to the adjournment in the form it was sent up." 
Neither the governor nor the house would yield, and therefore the 
session quickly came to an end. The court was summoned to meet 
for its next session at Cambridge. At once the governor announced 
"that the present method for removing the court from Boston 
should not be made a precedent," and "that he should be willing 
that the court should take any proper method to make valid the 
meeting of the court here, if it were doubted to be regular and 
legal."^ This the house apparently regarded as a complete sur- 
render to its contention. The result was the following resolve : 
"That the Great and General Court or assembly. Shall and may 
be Now held at Cambridge, . . . and that No Exception 
or advantage shall be taken hereby Respecting the power of Re- 
moving the General Court from place to place."^ Nevertheless 

' Court Records, XI. 240. 
"Acts and Resolves, X. 120. 



IN PROVINCIAL MASSACHUSETTS. 47 

Hutchinson says^ that, "by this equivocal vote the governor imag- 
ined that he had preserved his authority entire." Upon the gen- 
eral reference to the law officers of the crown concerning mat- 
ters in dispute between Shute and the house, an order in coun- 
cil was passed in conformity with their opinion, "that the sole 
power of ... . adjourning the General Court .... 
either as to the time or place is in His Majesty's Governor." The 
explanatory charter made no mention of this matter. 

In 1728 the governor's exercise of his right was opposed with 
more reason. Burnet, exasperated by the sympathy of the Bos- 
ton people v/ith the refusal by the representatives to establish a 
salary, and especially by a resolution to that effect passed in 
tovv^n-meeting, removed the court to Salem, frankly avowing his 
reason,^ hoping that they would now manifest a better temper, and 
be more obedient to the instruction. The representatives in an in- 
jured tone declared that they should carry their sentiments and 
reasons with them wherever they should be obliged to meet. Ap- 
parently they admitted the governor's power to remove ; for, while 
declaring immediately that they conceive the court cannot without 
its consent be removed, yet, lest advantage be taken of their non- 
appearance, reserving to the province the benefit of the law fixing 
the place, they "do not refuse meeting His Excellency at the time 
and place aforementioned," i. e., at Salem. Again they conceded 
the governor's right in their earnest request that he "remove the 
court to Boston." But two weeks later, after attending to mis- 
cellaneous business, they made their formal protest. They be- 
lieved that the act establishing writ-forms required the assembly 
to be at Boston and could be changed only by the legislature. 
They made much of the fact that Shute in 1721 had consented 
to a legislative resolve validating the proceedings at Cambridge. 
Burnet made complete answer to their protest, and of necessity 
they proceeded to business. In hearings, before the board of trade, 
of matters in dispute between Burnet and the house, the Massa- 
chusetts agents represented the adjournment to Salem as unreas- 
onable and a hardship, "using his power in a very absolute way," 
but did not charge it with illegality.^ In the following session, Au- 
gust, 1729, Burnet had the satisfaction of reading to the court 

'Hutchinson, III. 300. 

^ Court Records, XIV. 183-7. 

' Palfrey, IV. 519, note. 



48 . CONSTITUTIONAL CONFLICT 

the report of the board of trade, approved by the privy council, 
that the question of adjournment had been determined previously 
in favor of Shute, and that the present governor's action had been 
agreeable to that determination.^ The matter had been argued in 
Massachusetts in April, the council this time entirely upholding the 
governor's contention against the house.^ In the same month the 
governor adjourned the court to Cambridge, where it was sitting 
when his death put an end to their disputes. The governor cer- 
tainly had legal right on his side, but considering the breach of 
custom and the inconvenience to the house of meeting in any 
other place than Boston, it should have required an extraordinary 
occasion to justify the use of that right. Moreover, the use of 
it with Burnet's motive would seem to have been the height of 
unwisdom, since it only increased the exasperation of the house, 
already sufficiently opposed to granting a salary, to be harrassed 
from place to place to bend it to his will. 

It was this body of precedents then to which Lieutenant- 
governor Hutchinson and the house could refer in 1770, when the 
question came up once more on his calling the assembly at Cam- 
bridge instead of Boston. Their refusal to do business, the new 
argument of the house against removal (viz., that it was based 
on an unconstitutional instruction) when used in connection with 
the old ones revived, and the different outcome in this revolu- 
tionary time,^ are anomalous circumstances not to be treated in 
this account of the workings of the provincial system. It is only 
necessary to remark that here is another instance of the prepara- 
tion which the provincial period was making for the revolution- 
ary, 'setting against each other the antagonistic elements in the 
constitution, and developing their respective attack and defence. 

The form of the popular representative body had not to be 
evolved by a process of experiment or adaptation, but was found 
ready to hand. The house of deputies of the colonial period be- 
came the provincial house of representatives, an experienced 
body, with customs and traditions of its own, whose power was 
hardly at all weakened by the Andros interregnum, when the lack 
of a representative house was simply part of a regime which was 
regarded as wholly unconstitutional. 

' Court Records, XIV. 264. 
= Court Records, XIV. 233-6. 
' Hutchinson, III. 282-300. 



IN PROVINCIAL MASSACHUSETTS. 49 

One of the most striking innovations of the new charter, in 
appearance at least, was the change in the suffrage quahfication. 
The church membership test was abandoned, and in its place vv^as 
substituted a property qualification, the familiar forty-shilling^ 
freehold of the county members of parliament, or the possession 
of other estate of the value of fifty pounds.^ The original sug- 
gestion of the board of trade had been a property requirement of 
one hundred pounds, which was modified to fifty after a conference 
between the attorney-general and the agents, a concession to dem- 
ocracy. The new qualification shifted the balance of forces. It did 
not perhaps involve a very great widening of the suffrage, though 
the forty-shilling freehold was a fairly low limit for a commu- 
nity of small farmers of relatively equal economic position ; but 
the change was important in that it shifted the basis of participa- 
tion in things political from the spiritual to the economic domam. 
It was a plain sign that the Calvinistic commonwealth had be- 
come an English province, its peculiarity as a people had vanished, 
its community and sympathy with other English colonies was rec- 
ognized, a change fraught with great significance for the latter 
part of the eighteenth century. 

For eligibility to the house the charter required only that the 
representative be a freeholder. The requirement of residence in 
the constituency, destined to become so characteristic of the Amer- 
ican representative system, came in only by statute, and then it 
would seem almost by accident, to serve a temporary purpose. 
Governor Phips found himself opposed by a knot of Boston men 
in the house, who represented distant towns which could ill afford 
the expense of sending men from home. To get rid of this oppo- 
sition Phips urged the passage of an act^ requiring that the rep- 
resentatives be freeholders "and resident" in the towns for which 
they stood. This is subject here to the usual criticism that it 
meant a loss of strength to the house, since the frontier communi- 
ties were far less able than the metropolis to produce statesman- 
ship. The interests of the community represented were relatively 



^ The editor of the Province Laws has shown the error, by which 
the word "forty" was substituted for "fifty" in the duplicate of the charter 
sent to America, an error repeated in many later reprints of the charter. 
Acts and Resolves, I. 363. 

'Act 1693-4, c. 14. 
4 



50 CONSTITUTIONAL CONFLICT 

of less consequence than those of the colony as a whole, and 
hence there was less need of accurate local acquaintance with the 
constituency. However, this system resulted in making the house 
a more truly representative body. The mingling of men from 
all parts of the province, the exchange of views, the reaction upon 
all parts of the province of the doings and deliberations of the 
house, meant much in the preparation for a time when the cor- 
respondence between constituents and their members at the cen- 
ter was suddenly to blossom into a system of Committees of Cor- 
respondence, which could disseminate ideas rapidly throughout 
the province and produce simultaneous co-operative action, coun- 
teracting the otherwise excessive localism of the towns and pro- 
ducing a provincial community of sentiment. The house of the 
eighteenth century was a really representative body, in a sense 
inapplicable to the house of the seventeenth century, or to the 
commons. Representation was based on economic standing in 
the community, not on church membership ; and while the latter 
had originally meant the solid, reliable elements of the commu- 
nity, in a degenerate time it was running the risk of involving 
hypocrisy and fraud, and was coming to mean priestly domina- 
tion of an undesirable sort. The influence of aristocratic nomi- 
nation and actual corruption, which so strongly affected the com- 
mons of the eighteenth century, was not to be found on this side 
of the Atlantic. With all its crudeness and ignorance of political 
science and of the principles of legislation, with all its pettiness 
and faction in dealing with the policy of the home government, the 
Massachusetts house was at least truly representative, speaking 
the mind of its principals. 

The unit of representation in the house was the town. Since 
1639 each town had been entitled to two delegates, and this gen- 
eral plan was continued in the charter of 1691, with power in 
the general court to make apportionment. There was substantial 
equality between the towns ; but some regard was paid to pro- 
portion in the provision by which every town of 40 or more elec- 
tors must send one representative, of 120 or more might send 
two, of 30 to 40 might or might not send one at its option ; while 
towns with less than 30 electors might join with other towns in 
choosing and supporting a representative. Exception was made 
of Boston, which as the metropolis might have four representa- 
tives. The custom was for every house to be composed of four 



IN PROVINCIAL MASSACHUSETTS. 51 

from Boston and one each from seventy or eighty other towns 
(a growing number), with two representatives each from three 
or four of the large coast towns, as Salem, Ipswich, and Newbury. 
These delegates were elected in open town-meeting, and repre- 
sented the towns in their corporate capacity. Yet they together 
formed a provincial legislature, based on the people of the prov- 
ince as a whole and capable of expressing its unified will ; that is, 
they were not mere delegates confined as to opinion and powers 
to the instructions from their towns. 

The house was the sole judge of its membership. The repre- 
sentatives might "settle order and purge"^ their house and "make 
necessary orders for the due regulation thereof." They expelled 
a member in 171 5 for scandalous immoralities, and at times ex- 
cluded military officers.^ Fines were imposed for unexcused non- 
attendance, and the house journal is full of requests by individual 
representatives that they be excused absence on such and such 
days for specified reasons. By such procedure the quorum of 
forty was made easy to obtain. The charter required the taking 
of the oaths of William and Mary which were substituted for the 
Allegiance and Supremacy Oaths, and the Declaration against 
transubstantiation. Privilege from suit or arrest during the session 
and during necessary journeying was enjoyed by the representa- 
tives ; also exemption from military service, constable service, and 
the watch. Since their pay came ultimately from the town repre- 
sented, economy was a motive with some towns for slighting the 
duty of electing a deputy, at a time when the towns were so poor 
as to feel the burden, and before political agitation had made rep- 
resentation a privilege to be coveted and used to the fullest extent. 
Pay was set at three shillings per diem during the time of attend- 
ance and necessary journeying,^ but was later changed as the cur- 
rency depreciated to four shillings,^ six shillings,^ and to two shil- 
lings new tenor. ^ It was paid from the province treasury and 
then assessed upon the province tax due from the town. This 
practice of making the pay of the representative automatic and: 



' Act 1692-3, c. 38. 

^ E. g., Moodey, a "commander of soldiers in pay," July, 1720. 

'Act 1692-8, c. 38. 

*Act 1714, c. 4. 

'Act 1726-7, c. 13. 

' Act 1737-8, c. 3. 



52 CONSTITUTIONAL CONFLICT 

impersonal was precisely what the governor demanded for his 
own support, and Burnet in 1729 did not omit to call the attention 
of the house to its inconsistency in refusing a salary to the gov- 
ernor "for the time being. In fact, Burnet withheld his sig- 
nature for a time from the warrants for the representatives' 
pay, in the vain attempt to compel favorable action by them.^ 
The result of this protest was the assimilation of the two wage 
systems, but not in the method desired by Burnet. From now 
on, after the manner of the governor's support, the amount 
of the daily wages of a representative was fixed annually by act 
of the general court. ^ 

The organization of the house, with the one exception of the 
speakership, was exclusively subject to its own action. Its clerks 
and messengers were elected by it alone, though paid by semi- 
annual resolves of the whole court. It made great use of com- 
mittees, to prepare business and formulate policy. The germ of a 
standing committee system is in the Committee on Petitions, ap- 
pointed every session to receive and report on pecuniary claims 
against the province, on muster rolls and expense bills of all sorts. 
There was usually a committee whose business it was to see what 
laws were about to expire and needed reviving, and what amend- 
ments were needed in the law of the province. But besides these 
standing committees there were many others which were purely oc- 
casional, e. g., to deliberate on the governor's messages and draft 
replies ; also a series of quasi-administrative committees, to make 
special inquiries, or to care for the execution of some command 
of the house, e. g., purchase or examination of stores or fortifi- 
cations, burning bills of credit, and the like. An examination of 
the composition of these committees reveals the fact that a very 
few leading men were called upon by the house to ascertain and 
state its mind on many different kinds of business, indeed, after 
the manner of a cabinet, to form its policy. During the admin- 
istration of Shute, when the speaker forsook his former attitude 
of impartial moderator, that officer was very frequently a member 
(often chairman) of the committees appointed to represent the 
house in its differences with council and governor. In fact he 
seems to have developed the position of "leader of the house." 

'Court Records, XIV. 239. 

*Acts 1730-1, c. 15; 1731-2, c. 12, etc. Yet this was occasionally 
omitted, e. g., 1732-3, 1740-1, and regularly omitted after 1748. 



IN PROVINCIAL MASSACHUSETTS. 53 

It was this possible leadership that gave significance to the 
question whether or not the governor might veto the choice of 
the house for its speaker. The charter was silent on the point, 
and during the first ten years there seems to have been no sug- 
gestion of such a right. The house would merely send a message 
to the governor, informing him whom they had chosen. Bello- 
mont^ "expressed his satisfaction" with their choice, but that 
was as near as any of these early speakers came to actual approval 
by the governor. Dudley, however, proceeded to claim a right 
analogous to that of the Crown over the commons. In 1702^ and 
also in the two following years he "declared his acceptance" of the 
speaker chosen by the house. In 1705 the choice of the house 
fell upon Thomas Oakes, who as agent in England had opposed 
the new charter. Dudley described him to the board of trade^ 
as "a known commonwealth's man, never quiet nor satisfied with 
the government, but particularly very poor ;" and, as Chalmers 
says, he "disliked the government of England."'^ Dudley de- 
clared to the messengers of the house "that he did not accept the 
election" and "by virtue of the power granted him by Her Majes- 
ty's royal commission directed that the House proceed to the choice 
of a new Speaker." The house insisted on their choice, standing 
on the act of 1693, already confirmed in England, which pro- 
vided that the house might "settle order and purge their house 
and make such necessary orders for the due regulation thereof 
as they shall see occasion." It paid no heed to his suggestion 
that they elect another man with a salvo jure, but proceeded, as 
if already fully organized, to the election of councillors, the nec- 
essary business of the day. The exigencies of defence absolutely 
required a good understanding between executive and legislature, 
and Dudley dared not assume the responsibility of arresting pub- 
lic business by insisting at that time on his claim of right. On 
appealing to the council he received their opinion, that "it is not 
in the governor's power to refuse the election of a Speaker and 
direct the choice of another by virtue of the charter." There- 
upon he abandoned the contention and announced the next day 
that, though "he is very well satisfied of Her Majesty's just 



' Court Records, VII. 70. 
' Court Records, VII. 361. 
' Palfrey, IV. 295. 
' Chalmers, Revolt, I. 332. 



54 CONSTITUTIONAL CONFLICT 

right and prerogative to allow or disallow a Speaker," as well 
as the council, "being all elected by the Assembly," yet he 
yielded, owing to the pressing demands of the war, "saving to 
her most gracious Majesty her just rights."^ Oakes was again 
elected in 1706, but no record appears of the approbation of the 
governor. From now on the house was accustomed to send a 
message "to acquaint" the governor with its choice, "which His 
Excellency (usually) declared was acceptable to him."^ 

In 1720 the house chose for speaker Elisha Cooke, who had 
prominently identified himself with the popular opposition to the 
king's reservation of mast timber, and in several ways had made 
himself very obnoxious to Governor Shute. Upon the formal 
notification to the governor, "His Excellency answered that the 
said Elisha Cooke had treated him ill who is the King's Gov- 
ernor and therefore by virtue of the power given to him by the 
royal charter he does negative the said Elisha Cooke, and desires 
the House to proceed to the choice of a new Speaker." The 
house replied that they "do according to their known and legal 
privileges insist on their choice." As it seemed likely that the 
house would regard itself as organized and proceed to the election 
of councillors, and would do so alone unless the council were 
allowed to join it, the governor withdrew, but directed the 
secretary to acquaint the house : "That he is informed Governor 
Dudley did in his government disallow of a Speaker chosen by 
the House and that his proceedings herein were approved by the 
Commissioners of Trade and Plantations, and that it would not 
be thought fit that His Majesty's right of having a negative 
upon the choice of a Speaker be given up, which was reserved 
to His Majesty as well by the charter as by the constitution of 
England." After the election of councillors Shute made a speech 
warning the house of the unacceptableness in England of their 
choice of one who had ill treated the king's governor, for whose 
removal from the council he had received the thanks of the 
board of trade. He strongly urged them to choose another 
speaker with a reservation of their rights, and to send home for 
an explanation of that part of' the charter. The house, after 
due deliberation, voted upon the question, "Whether they shall 



'Court Records, VIII. 114, fif. 

'E. g., 1707. Court Records, VIII. 294. 



IN PROVINCIAL MASSACHUSETTS. 55 

proceed to the choice of a new Speaker?" and "it passed in the 
negative nemine contradicente." Next day the governor dis- 
solved the assembly, expressing the hope that the new one to 
be elected would choose for speaker "one that fears God and 
honors the King."^ The speaker elected by the new house was 
Timothy Lindal, a choice which the governor declared "was very 
acceptable to him." They did indeed yield as to the person of 
their choice, lest business be longer impeded ; but they still in- 
sisted on their rights, declaring that the assertion and mainte- 
nance by the former house of their right and ancient privilege 
of choosing their speaker and not owning his Excellency's power 
to veto, "was nothing but what they were strictly obliged to." 

In 1 72 1 the second house (elected on the early dissolution 
of the regularly elected one) met August 23, and soon sent word 
to Shute that they had elected John Clark, "and that he had 
accordingly taken the chair." The governor replied, "I accept 
of the choice of John Clark, Esq., as Speaker of the House of 
Representatives." But the house voted that, while they had 
sent word "to acquaint His Excellency and the Honorable Board 
with the choice of their Speaker it was done for their information 
and not for His Excellency's approbation." Shute replied the 
next day that the board of trade had informed him of their con- 
viction, based on the opinion of the attorney-general, that the 
governor has "a full power to non-concur in the choice of a 
Speaker and in all elections."^ As the house continued of the 
same opinion as before, Shute urged them to state their case 
and send it home for determination.'^ This was done, and in a 
general inquiry regarding points in dispute between Shute and 
the house this question was settled. The law officers of the crown 
declared that under the charter of 1691 the right of the governor 
to veto was an open question, the speaker being an officer not of 
the general court but of the house ; hence, while Shute's action 
was proper, the right being one enjoyed by the king against the 
commons, yet the action of the house was not a contempt. An 
explanatory charter was accordingly issued August 26, 1725, in 
which express power was given the governor to approve or dis- 



' Court Records, XL 3-6. 
'Ibid, XI. 201, 203. 
^'Ibid, 222. 



56 CONSTITUTIONAL CONFLICT 

approve the choice of the house.^ From 1722 to 1725, inclusive,^ 
the house had been merely announcing to the lieutenant-governor 
that such an one had been elected speaker ''and is now sitting 
in the chair." But after 1726 it was the custom for the house 
to send a committee presenting their appointee to the governor 
"for his approbation," and for the governor to send a message 
in writing approving of their choice.^ 

Powers belonged to the house solely as a branch of the 
general court, in which its acts must have the concurrence of 
the council and the consent of the governor. They rested on the 
express grant by the sovereign in the charter, and may be classi- 
fied as elective, financial, and legislative. 

It was by the general court* that the council was annually 
elected, and all other officers not judicial, including the province 
treasurer, war commissioners, excise commissioners for the prov- 
ince or separate counties, commissioners for other financial func- 
tions, such as audit, and the granting of debentures ; also agents 
to treat with other colonies or with the Indian tribes. It became 
a disputed question between the appointing governor and council 
and the electing general court, whether the attorney-general and 
public notaries were "officers belonging to the courts of justice," 
and whether or not the house might participate in their election. 
Until the close of Dudley's administration it was supposed that 
the attorney-general was such an officer, and he was therefore 
appointed; but in 1716 Lieutenant-governor Tailer allowed an 
election to that office,^ by the general court. Shute and Dummer 
acquiesced in the custom, though Dummer dutifully communi- 
cated to the house a paragraph in Shute's letter of March 21, 
1724, "proposing that a just regard be had to the opinion of 
Attorney-General Raymond" (in England) against the election 
of this officer by the court. But the council readily joined with 
the house in electing rather than appointing, and, though on this 
occasion Dummer vetoed the election, he consented to their later 
attempts of the same sort, 1725-8.^ Burnet came instructed to 



^ Acts and Resolves, I. 22. 

'E. g., Court Records, XII. 169. 

'E. g., 1726, Court Records, XIII. 125. 

'Acts and Resolves, I. 12, 16. 

' Court Records, X. 61. 

"Court Records, XII. 197-202, 378; XIII. 181, 324; XIV. 76. 



IN PROVINCIAL MASSACHUSETTS. 57^ 

signify to the general court that his Majesty conceived this nom- 
ination to be the undoubted right of the governor ; hence he was 
"not to suffer any person to act in that station but such as shall 
be nominated by" himself. This time (June, 1729) the council 
sustained him, and unanimously rejected the proposition of the 
house to make a joint election as hitherto.^ The office was this 
time filled by the governor and council through appointment. In 
vain did the representatives protest, declaring it a privilege 
"which has been transmitted to them by their predecessors" and 
which they "ought not to forgo."^ Again, in November and 
December, 1729, the house made an elaborate and ingenious argu- 
ment for what they claimed as a right. ^ They even requested 
the grand juries to pay no regard to bills presented by an attor- 
ney-general "whose authority was unconstitutional as it wanted 
their concurrence." But the council made complete answer to 
the claim of the house, basing their claim as they safely could, 
on the governor's peremptory instruction, and that point was lost 
by the house.* 

Notaries had derived their authority from the Archbishop 
of Canterbury, but in July of 1720 the house began to include 
them among the public officers who should be elected by the 
court. As the council did not accept the invitation of the house 
to a joint ballot to elect notaries, the house proceeded to elect 
them by its own votes. When the time came for their being 
sworn, the governor naturally said, as the council had not par- 
ticipated in the election "he did not see how they could be 
sworn."" At the November session of the same year, however, 
the council was brought to concurrence,*' and thereafter appoint- 
ment of these officers was made by the general court. 

Hutchinson regarded this method of choosing public officers 
by joint vote as a defect in the constitution, since the council was 
less than one-third as numerous as the house, and hence had 
comparatively little weight except when the house was divided 
upon candidates. But, remarking that if the election were to be 



' Court Records, XIV. 244. 

-Ibid, 247. 

'Ibid, 335-9. 

*Ibid, XIV. 346-9. 

'Hutchinson, II. 216. 

"Court Records, XL 22-30, 47, 49. 



58 CONSTITUTIONAL CONFLICT 

concurrent instead of joint, the right of nomination would be 
overpowering/ he did not suggest which house should have 
that power. The joint ballot by the general court seems to have 
been a conservative approach to popular election of these sub- 
ordinate executive officers, the council exerting a regulative force 
in that choice. 

The taxing and appropriating power was bestowed by the 
charter in the following words : the general court may "impose 
and levy proportionable and reasonable assessments rates and 
taxes upon the estates and persons of all and every the proprie- 
tors and inhabitants" of the province; this money to be issued 
from the treasury upon orders by the governor and council for 
defence and support of the government "according to such acts 
as are or shall be in force within our said Province."^ The man- 
ner in which these powers were exercised, the degree to which 
the house excluded the council from conference or power to 
amend, the expansion by the house of its power of control till 
it amounted to minute regulation, are reserved for description 
in a separate chapter. 

The legislative power^ was granted to the general court with 
nearly complete discretion in its exercise. It might "make ordain 
and establish all manner of wholesome and reasonable Orders 
Laws Statutes and ordinances directions and instructions either 
with penalties or without (soe as the same be not repugnant or 
contrary to the laws of this our realm of England) as they shall 
judge to be for the good and welfare of our said Province or 
territory and for the good and ordering thereof and of the people 
inhabiting or who shall inhabit the same and for the necessary 
support and defence of the government thereof." Some degree 
of formality was developed in the procedure of legislation, every 
act requiring three readings to pass to engrossment and enact- 
ment, the bills passing from one house to the other between 
readings, conferences by committee or by joint assembly accom- 
modating differences as they arose. But a number of practices 
in legislation arose which seemed undesirable to the home au- 
thorities, and which the governors were instructed to prevent. 
The first to attract attention was the placing a time limit on the 



'Hutchinson, II. 298. 
^Acts and Resolves, I. 16. 
" Acts and Resolves, I. 15. 



IN PROVINCIAL MASSACHUSETTS. 59 

operation of acts. For reasons that will appear more plainly in 
the discussion of financial and military control, the general court 
was accustomed to limit to one year (or other definite short 
period) the duration of the tax and impost acts/ also a whole 
body of legislation corresponding to the mutiny act at home, 
providing for the levy and discipline of soldiers," the transporta- 
tion of them out of the province, the offering of scalp bounties. 
Moreover, other acts more or less experimental in character, e. g. 
offering bounties on hemp and flax,^ regulating hawkers,* swine,^ 
the poor,*' or granting monopolies,^ were passed for a period of 
three or five years, then perhaps renewed or allowed to lapse, in 
some cases made perpetual. Very likely there would have been 
no objection to this as mere legislative practice, but the home 
authorities feared that the character of temporariness given to 
legislation which was absolutely necessary to the executive, was 
merely a cover for the requirement of frequent submission of es- 
sentially permanent laws to legislative action, in order to give the 
house leverage upon the governor. This was undoubtedly the case 
with the fiscal and military laws. Furthermore, it was supposed 
that laws which were displeasing to the home government might 
escape disallowance by being made temporary and hence 
scarcely worth disallowing, so that the court might pass these 
laws, give them effect for a limited period, and then pass them 
again. This procedure was scarcely at all used, and in the long 
run ill effects in any particular case could be avoided by instruc- 
tion to the governor to use his veto. But it was apparently 
feared ; for Bellomont received an additional instruction^ that 
all laws for the support of the province, except temporary laws 
having their effect within a certain time, were to be made per- 
petual, and no act was to be re-enacted "except upon very urgent 
occasions but in no case more than once without His Majesty's 
express consent." 



'Acts 1692-3, cc. 4, 5. 
= Acts 1697, cc. 1, 2, 5, 12, 13, 14. 
' Act 1701-2, c. IB. 
' Act 1710-1, c. 13. 
= Act 1713-4, c. 16. 
■^ Act 1703-4, c. 14. 
' Act 1728-9, c. 17. 

'^ February 3, 1698-9 ; incorporated into the regular instructions of 
later governors, e. g., Dudley's, 3 Mass. Hist. Soc. Coll., IX. 105. 



6o CONSTITUTIONAL CONFLICT 

Less important constitutionally was the early practice of 
joining several matters in one act which had little or no relation 
to each other, and of making their continuation or supplementa- 
tion in later acts merely by reference to their titles, which caused 
much confusion in the law of the province as understood in Eng- 
land, especially as the facilities for the transmission of laws were 
very imperfect, and the law officers of the crown sometimes found 
themselves called upon to advise as to the expediency of allowing 
an act which merely referred by title to a number of former acts, 
perhaps not perfectly consistent. This was the occasion of the 
instruction informally intimated to Stoughton, given in due form 
to Dudley^ and later governors, that independent subjects of legis- 
lation be not embraced within the same act, and that no clauses 
be inserted relating to matters not referred to in the title ; and 
of a later instruction (the 12th in the set issued to Burgess) that 
no act be suspended, altered or repealed by general words, but 
only by express mention. A further attempt at regulating the 
legislation of the general court was an instruction, appearing first 
as Burgess's 14th and continued thereafter, that no act "of unu- 
sual and extraordinary nature wherein our prerogative or the 
property of our subjects may be prejudiced" be passed without 
the royal pleasure previously signified, or a clause suspending 
its operation till the royal pleasure be known. Its terms were too 
indefinite, however, to be a very effective regulation of the court's 
legislative power. 

Another power granted to the general court was that to 
"make or pass any grant of lands lying within the bounds of" 
what had been the colonies of Massachusetts Bay, Plymouth, and 
Maine. This naturally belonged to the court as representative 
of the corporate personality of the province, which had succeeded 
to the ownership of the property of the Massachusetts Bay Com- 
pany, but it is worth noticing in contrast with the governor's 
power in some provinces to grant public lands, an opportunity 
for fraud not always neglected. Accordingly it was the general 
court that granted authority for surveys in the public lands, held 
hearings of objectors to the grants, and finally passed title to 
individuals or to companies of persons thereby incorporated 
as towns. 



'3 Mass. Hist. Soc. Coll., IX. 103. 



IN PROVINCIAL MASSACHUSETTS. 6l 

The judicial power of the general court was contained in the 
right given it to '.'^rect and constitute judicatories and courts of 
record or other courts . . . for the hearing, trying and deter- 
mining of all manner of crimes . . . causes and things." 
With the imperfect separation of powers in the old regime the 
general court had done a good deal of judicial business itself. 
This part of its functions was done away with by the new charter, 
(though not by express provision), the legislature confined itself 
to legislative work, and judicial work was done by a complete 
system of courts created by the legislature, with a superior court 
for the final hearing of appeals from the local courts, saving an 
appeal in some cases to the king in council.^ The general court 
heard no cases, but occasionally on petition and hearing passed a 
private act granting retrial or such other special relief as the case 
required. 

A unique case was that of John Borland and others in 1706, 
involving six prominent Boston merchants who were accused of 
furnishing supplies to the enemy in Nova Scotia. Even Governor 
Dudley was accused by rumor of complicity, to the extent at least 
of connivance at breaches of the law, and intense political excite- 
ment prevailed. By committee the house expressed to the coun- 
cil its request, that such proceedings, examinations, trials and 
judgments may be had and used upon and relating to the said per- 
sons as is agreeable to law and justice."^ Hutchinson remarks : 
"It was expected that the council would proceed as the House of 
Lords do upon an impeachment. No wonder the council did not 
immediately proceed. In trying a capital offence it behooved 
them to be well satisfied of their jurisdiction."^ The house, either 
convinced that that proceeding was irregular, or fearing that the 
charge of high treason could not be supported, proceeded to pass 
private bills of pains and penalties, declaring in each case the 
guilt of the subject of the bill and sentencing him to the payment 
of a considerable fine. The whole proceeding was nullified shortly 
after by the disallowance of these private bills by the privy coun- 
cil, and its order for the repayment of the fines. 

The political complexion of the house has been several times 
hinted at. It was at all times the seat of opposition to the preroga- 

^ Acts and Resolves, 1. 15. 
" Court Records, VIII. 208. 
' Hutchinson. II. 142. 



62 CONSTITUTIONAL CONFLICT 

tive, with a greater or less degree of unanimity on different occa- 
sions. The ports, especially Boston, furnished leaders for this 
party, who were followed in opposition by the members from the 
country towns. It was the radical, or at least progressive, rather 
than the conservative, commercial classes, of the port towns who 
held this position of leadership. Such men as Dr. Elisha Cooke 
and his son, were able, by appeal to popular prejudice against 
outside (i. e., home government) interference, to win a following 
and weld it into a fairly compact party, which they used, gen- 
erally for the patriotic purpose of checking executive excesses, 
but sometimes apparently in a factious spirit, to serve a private 
pique or hamper the governor in the legitimate and politically 
expedient exercise of his powers. 

The port towns were less fond of rotation in office than the 
country, more inclined to send the same representatives to suc- 
cessive general courts and thereby win experience and influence. 
In the thirty-five elections from 1693 to 1725, Charlestown, for 
example, sent individuals as her representatives for an average of 
3.8 terms each, and one of her representatives served sixteen 
terms. Shute complained of a maxim in Boston, "A negatived 
councillor" (therefore a man obnoxious to the governor) "makes 
a good representative," and it was a fact that three of the Boston 
delegation in 1723 had at various times been excluded from the 
council by the governor. Shute regarded the house generally as 
composed for the greater part of "men of small fortunes and 
mean education." He complained that the Boston men by insinu- 
ation made the country members believe the house was barely 
supporting its privilege, a distressingly absurd misstatement of 
the case as he saw it. 

Viewed in the light of what was to come, service in the house, 
the election and instruction of members by their constituencies, 
the correspondence and information of constituents by their dep- 
uties, formed an important influence in the political education 
of the province, in its growing apprehension of the meaning of 
real democratic self-government, by people, not clergy. Out of 
the multifarious disputes involved in the nature of things be- 
tween governor and house, the province learned to know itself, 
to find where its interest clashed with that of the home govern- 
ment as represented in the governor, to develop and systematize its 



IN PROVINCIAL MASSACHUSETTS. 65 

resources for opposition and its power to compel the agent of the 
home government, to estimate the value of the connection with 
the mother country, a value which might one day seem insufficient 
to make further continuance worth while. 



CHAPTER V. THE SALARY QUESTION. 

Among disputes between the governor and the house, con- 
sidered as a general feature of colonial political life, none is more 
often referred to than the salary controversy. In Massachusetts, 
till its settlement in 1735, this apparently sordid quarrel occupied 
an amount of attention far exceeding that which would be 
given to a mere administrative detail. Had it not a larger signifi- 
cance? The governor demanded a fixed permanent salary, and 
the house refused, substituting therefor an annual allowance, 
all agreeing that the governor should have a support from the 
province, differing merely upon the method by which it should be 
granted. In the minds of the political leaders of the province this 
was held to involve much more than a mere administrative detail, 
rather a fundamental constitutional principle was at stake, viz., 
that the disposal of public money was the function of the repre- 
sentative body of the province, subject to no dictation from home. 
Moreover, with the development of the provincial constitution by 
the interaction of legislative and executive departments, the pro- 
vincial leaders gradually came to see that with the salary contro- 
versy was involved the yet more fundamental question of the rela- 
tion of the departments. It came to be realized more and more 
clearly that, if the executive were supported without reference to 
the legislature, the former would become a perfectly independ- 
ent department; if the support of the executive were controlled 
by the legislature, its freedom would be limited. If the governor's 
contention prevailed, the executive and legislature would remain 
co-ordinate; the triumph of the house meant the subordination 
of the executive, and something in the nature of a parliamentary 
sovereignty as a result. 

In his capacity of royal official the governor was very un- 
welcome to the province, because he represented an external au- 
thority, and his presence involved a substantial limitation on local 
self-government. This circumstance of itself made a cheerful 
support by the legislature unlikely, in the light of their undoubted 
preference to do without him altogether. The poverty of the 

(64) 



IN PROVINCIAL MASSACHUSETTS. 65 

province would be adduced as a reason for small pay more readily 
in dealing with the unwelcome foreign official than in the case of 
the native military and civil officers. Further, the fact that the gov- 
ernor was a royal officer, who was responsible to the king and not 
to the province, but whom it ought to pay for the service he was 
manifestly performing for it, was held to mean that the king was 
prescribing part of the expenditure of the province. Fortified by 
three-quarters of a century's experience under the colonial char- 
ter, and relying upon the analogy between general court and par- 
liament, the province was fully persuaded that it was the right 
of the provincial legislature alone to determine the modes of ex- 
penditure of public money. The charter required that the issue of 
money from the treasury be according to the rules and orders of 
the court. This gave the court the whip hand. The home govern- 
ment might recommend, might command, might even threaten- 
the general court with the dire penalty of an act of parliament 
in case of a refusal of a fixed salary ; but it could not actually grant 
the money, and as the court chose to run the risk it persistently 
refused to make the grant, and in the end the home government 
had to yield. 

But if the governor was an official existing for the purposes 
of the home government, why should he not be paid by the home 
government, and thus be saved a deal of friction and waste of 
energy ? This suggestion was made at an early period by the board; 
of trade, but was never approved. In the first place, he was so 
evidently serving the province as well as the home government,, 
that it seemed only just that so much at least of the expense of 
imperial administration be borne by the province receiving the ■ 
benefit. In the second place, it was always to be hoped that by 
some means, (military exigency, political adroitness, or what not), 
the governor would be able to win his point with the general 
court, and secure the obedience of the province to the command ' 
of the home government. But the payment of the governor from- 
England would have been intolerable to Massachusetts. The sav- - 
ing to the treasury would have been appreciated, but of heavily 
overbalancing consequence was the constitutional opportunity 
hinted at in the beginning. The proposition was never formally 
made in our period, so there was no expression of the opinion 
of the province; but the indignation in 1773-4 at a similar provis- 
5 



66 CONSTITUTIONAL CONFLICT 

ion for the judges of the superior court^ leaves no doubt what 
her answer would have been at the beginning of the century. A 
governor not only appointed in England, but also looking thither 
for his support, with no personal loss to fear from the ill-will of 
the province, and nothing to gain from its good-will, would have 
been (they might say) far more under the temptation to play the 
plunderer. It was their constant argument that the governor 
should be induced by his own "interest as well as duty" to consult 
the welfare of the province. Here is a presumption on the part 
of the province that the relation with the governor must neces- 
sarily be one of distrust and suspicion, a presumption boding no 
good for the efficient and smooth working of the system. But even 
if the personal integrity of the imperial official were presumed, it 
was evident that without such a lever as a variable allowance the 
legislature could not hope to subject the executive to a subor- 
dinate position ; it must give up the idea of restoring by gradual 
encroachment the seventeenth-century parliamentary supremacy 
of the general court. 

The significance of the salary question was appreciated by 
both parties. At the very outset, by the advice of Elisha Cooke, 
who as an agent in England, had stood out most persistently 
for the old charter, and who for many years was the leader of the 
"country party" in Massachusetts,^ it was decided that no salary 
be established for the governor, and instead he was granted every 
year an allowance "for his service and expense," or "to enable 
him to manage the affairs of the government." The house real- 
ized more or less clearly the doctrine of its leaders, that the annual 
support could be used as a club over the governor's head to secure 
some measure of compliance with its will. Accordingly it became 
the practice to pass the allowance to the governor on the last or 
next to the last day of the session. Indeed, in 1721 it became a 
matter of dispute between the house and Governor Shute whether 
it were not a fixed custom that the house should be informed that 
the governor had approved the acts, resolves, and elections of the 
session before it should be expected to enter upon allowances. 
In 1735, when the demand of a fixed salary was given up, the 
privy council insisted that the governor's allowance should be 

'Hutchinson, III. 386, ff., 422, ff. 

' At his death, in 1715, his son Elisha Cooke, Jr., succeeded to this 
leadership. 



IN PROVINCIAL MASSACHUSETTS. 6/ 

passed at the beginning of the session, to which practice the 
house thenceforward conformed.^ 

The home government also realized, at least theoretically, 
the importance of this question. It vievv^ed the matter as did 
Quary, surveyor-general of the customs, v\fho observed to the 
board of trade in 1703, that he could not see hov/ a governor 
could serve the interest of the crown v/hen dependent "upon the 
precarious humors of the people for a subsistence." "It lays the 
governor under the temptation of making sometimes a very dis- 
advantageous bargain for the crown and stooping below the 
dignity of his character."^ The board of trade said, March 27, 
1729, that the appeal of the house to the governor's pocket meant 
that they would pay the governor in proportion as they judged 
he deserved, by giving his assent to all the measures which they 
proposed. Accordingly the king instructed his governor, begin- 
ning with Dudley in 1702,^ "to propose to the General Assembly 
of our said Province and accordingly to use your utmost en- 
deavours with them, that an act be passed for settling and estab- 
lishing fixed salaries upon yourself and others our captains-gen- 
eral that may succeed you in the government . . . suitable 
to the dignity" of the office. 

But when mere recommendation was found to be ineffectual, 
the home government, instead of passing immediately to meas- 
ures which would bring the matter to an issue, allowed it to 
drift unsettled. Meanwhile the province was making hay in the 
sunshine of official indifference, and was establishing a line of 
precedents that became only more difficult to break as time went 
on. Governor Shute went home in 1723 with a formidable bundle 
of charges against Massachusetts, including her disobedience in 
the matter of his salary. Then at last was the question taken up 
seriously. In Burnet a governor was found who would insist 
on doing what he thought to be his duty, in which he included 
strict obedience to the salary instruction. His whole admin- 
istration was one brisk fight over that issue. At Burnet's death 
Belcher was appointed, with strong hopes that skilful manage- 
ment would succeed where high character had failed. But after 
seven years' experience of a house annually subject to election. 



'Palfrey, IV. 539. 

'3 Mass. Hist. Soc. Coll., VII. 230. 

'Ibid, IX. 104. 



68 ' CONSTITUTIONAL CONFLICT 

yet unchanging in its resolution not to yield to strong and skil- 
fully applied pressure from two successive governors, the privy 
council gave up. In 1735 the governor was given permission to 
accept annual allowances from the house. 

A description of the progress of the dispute under successive 
governors will illustrate the features above outlined. Under the 
old charter government there had been a system of permanent 
salaries, attached to the office, not the man.^ This was subject 
to no objection in the days of unified, complete self-government. 
But with the new charter came an entire change of system. Even 
the native officials were now made dependent upon annual or 
semi-annual grants by the general court. 

It is just possible that if Phips had been instructed as were 
later governors, and had resolutely insisted on the passage of 
a permanent salary, the circumstances of the uncertainty then 
prevailing in regard to constitutional relations in the meaning 
of the new charter, and the assistance of a council named in 
England, might have combined to bring success. He did not, 
however, make such a demand, appears to have been unaware 
of the significance of the question and of his responsibility as 
governor,^ and was apparently content with the "presents" the 
court gave him. These were indeed munificent in comparison 
with the salary of the colony governors,^ but the establismhent 
of precedents was of the greatest importance in such a case, and 
the popular body under Cooke's guidance thoroughly appreciated 
the significance of the opportunity and its own responsibility, 
gaining thus an advantage by no means lightly to be esteemed. 
They made him mere grants, single and unconnected, though of 
so considerable a sum as £500* and he approved them ; thus was 
fixed for a considerable period the form in which the support 
of the governor was to be provided by the house. 

Bellomont received no precise instruction as to the attitude 
he should take on this matter, and his short term was occupied 

^ Osgood, American Colonies, I. 485. 

" True he wrote to the board of trade that "no salary was settled," 
and he "desired it might be considered." He requested that the king 
"nominate to the said assembly a salary sufficient for his support as Gov- 
ernor." Palfrey, IV. 142. 

'£120 by the establishment of 1653. Mass. Col. Recs., III. 320. 

* E. g., "for his great service in the government the last year," June 8, 
1694, Acts and Resolves, I. 174. 



IN PROVINCIAL MASSACHUSETTS. 69 

with Other concerns. But his tactful cultivation of the Puritan 
good-will by social complaisance and a popular attitude on most 
political questions secured him remarkably large presents, and 
showed how large a factor personality may be even in a consti- 
tutional struggle. This is illustrated by Hutchinson's mention^ 
of "a speech of his to his lady, when his table was filled with 
representatives from the country towns, — 'Dame, we should treat 
these gentlemen well ; they give us our bread.' " This Irish peer 
was estimated at twice the value of Phips, the native ship-builder, 
and £1,000, was granted by act of July 14, 1699,^ "to the sole 
and proper use of" Lord Bellomont, and again just a year later, 
July 5, 1700,^ another thousand pounds was granted, the courf 
having "resolved to make a present" to the governor. His house- 
rent also was paid by the general court, and a special present 
of £500 was made, to be used by him in forwarding the court's 
address to the king in regard to Harvard College. By reason 
of an instruction restraining the governor from accepting money 
from the assembly without the king's leave express permission 
was obtained in these cases.* 

It was no pleasure to Bellomont to have "so precarious a 
foot for a salary for this government," and he complained of it 
in his letters home.^ In his view £1200 would be a more proper 
figure, and it should be by permanent, not annual, legislative act. 
The board of trade remarked, April 11, 1700, on the contumacy 
of the "only Province depending immediately on the King which 
has not settled an allowance on the Governor," though much 
better able than others. Ashurst, the Massachusetts agent in 
London, upon inquiry from the board of trade, made reply that 
he did not believe the general court would consent to a "salary 
upon all governors for the future;" but "doubted not but that 
they might be persuaded to settle a suitable salary upon the Earl 
of Bellomont during his government."*^ More was to be heard 
later of this compromise proposition, now suggested by the agent, 
and later to be supported by the council under Burnet and 



' Hutchinson, II. 107, note. 

^Acts and Resolves, I. 394. 

^'Ibid, 437. 

*Ibid, 766, 777. 

'August 28, 1699, Palfrey, IV. 177. 

° Palfrey, IV. 177. 



70 CONSTITUTIONAL CONFLICT 

Belcher, but it was to be at first ignored by the board of trade 
and later rejected by the house. 

The first years of Dudley's administration saw the issue 
sharply defined. In his first speech to the general court, 
on June i6, 1702/ he announced that he was expressly in- 
structed (as above) to insist on fixed salaries for the executive 
officers, and upon a house for the governor's use, warning 
them that it was remarked in England that there was no 
other province where fixed salaries were not granted. The 
house ignored this point, and merely resolved "that the sum 
of £600 be at this time presented out of the public treasury 
to His Excellency Joseph Dudley;" a little later an act 
was passed accordingly.^ In its reply to the governor's speech, 
the house disposed of his argument in summary fashion: 
"As to settling a salary for the Governor, etc., it is altogether 
new to us, nor can we think it agreeable to our present 
constitution, but we shall be ready to do according to our 
ability what may be proper on our part for support of the gov- 
ernment." Later in the year two hundred pounds in addition 
was granted him by resolve "for his service as Governor and for 
house-rent for the present year, beginning from the time of His 
Excellency's arrival."^ This was the outcome of a thorough 
consideration of the affair between governor and house, Dudley 
reading his instruction and telling them they were "parties priv- 
ileged and as singular in neglect of duty," the house declaring 
that "it is not convenient (the circumstances of the Province 
considered) to state salaries, but to allow as the Great and Gen- 
eral Court shall from time to time see necessary."* The council 
at first agreed that this was not "a suitable maintenance for His 
Excellency," but finally recommended that Dudley accept the £200 
for the time, hoping better things from a later session. 

On April 10, 1703, the privy council passed an order"^ drafted 
by the board of trade, to be communicated to the Massachusetts 
council and house, "to require them that in consideration of the 
great privileges they enjoy they do settle a constant allowance 



^ Massachusetts Archives, CVIII. 1. 
^ Acts and Resolves, I. 498. 
' Acts and Resolves, VII. 358. 
* Court Records, VII. 327. 
"Acts and Resolves, VII. 323-4. 



IN PROVINCIAL MASSACHUSETTS. 7I 

suitable to the character and dignity of that government without 
limitation of time," intimating that "if they neglect this oppor- 
tunity of complying with Your Majesty's just expectations Your 
Majesty will be obliged to have recourse to such remedies as 
may be proper and effectual to a due provision therein."^ 

The newly elected general court passed a resolve, July 30, 
1703^ — a resolve being usual from now on, instead of an act, 
which would be subject to veto at home — granting £300 to 
Dudley "in part for his support in the management of the gov- 
ernment thereof the year currant." The council sent a message 
to inquire of the house whether this was "a gratuity or for serv- 
ice and precisely for how long, and to move a suitable allow- 
ance ;" but no satisfaction could be obtained from the house, and 
the council finally advised Dudley to accept it. In September,^ 
and again in November, on postponement for the sake of getting 
a "fuller house," Dudley became very urgent, bringing the house' 
on the 5th of November to the following formal statement and 
defence of its position : "As it is the undoubted privilege of the 
English nation to raise any sum or sums of money when and 
to dispose of them how they see cause, and so hath been from 
Henry III and confirmed by Edward I and ever since continued 
as the unquestioned right of the subject, so we hope and expect 
ever to enjoy the same under our most gracious Queen Anne 
and her successors, and therefore do account it inconsistent with 
Her Majesty's interest here, and that it may prove prejudicial 
to Her Majesty's subjects in this Province to state perpetual 
salaries." In the March session the annual allowance was com- 
pleted to £500 by an additional grant of £200 "for and towards 
his support in the government."* Dudley was obliged to write 
home to Nottingham, April 21, of his disappointment at the 
"stubborn resolved temper" of the house, "that they will agree 
to nothing wherein they may show their obedience to Her Maj- 
esty."^ 

This temper,- moreover, did not yield to Dudley's repeated 
urgings, nor even to the royal urgency displayed in the letter from 



^Palfrey, IV. 254-5. 

'Acts and Resolves, VIII. 23. 

^Ibid, 339. 

*Ibid, 52. 

' Palfrey, IV. 291. 



72 CONSTITUTIONAL CONFLICT 

the home government communicated December 2.^, 1709, calHng 
It ''unreasonable" for Massachusetts to expect protection from 
;her Majesty "while they of all the colonies in America do refuse 
:to settle a salary." The last stand was made in September, 1705. 
In spite of the disinclination of the house to consider a new 
letter from the queen regarding the repair of Pemaquid Fort 
and the salary question without a fuller attendance, Dudley in- 
sisted that "the House should sit till it made answer." The 
:result was an address to the queen, in which the court justified 
its course of disobedience on the ground of the right of English- 
men to representation and consent in taxation and appropriation, 
~" which we have hitherto happily Enjoyed under your Sacred 
Majesty, And we humbly hope and pray will be continued to us 
and our posterity." In the reply to the governor's speech, 
reason for non-compliance had also been found in the fact that "the 
circumstances of this Province as to our ability to support the 
government are at times so different."^ At this point the gov- 
ernor lost his last ally; for the council, on being formally asked 
its advice on the question among others, "Whether they advised 
to the settling a fixed salary for the Governor and Lieutenant- 
Governor for the time being?" gave a negative answer.^ 

The question was thus settled for the period of Dudley's 
administration. The home government left unrealized its vague 
threat of "further measures," and the house remained master 
of the field. Every year presents were regularly made, £300 in 
the summer, £200 in the winter session, and Dudley accepted 
these gifts, not with good grace, but in a spirit of resignation 
to disappointment. The variation in amount, which the house 
ieared might be necessitated by the poverty of the province, and 
which the home government feared might adapt itself to the 
governor's degree of compliance with the will of the assembly, 
did not show itself. £500 was the sum regularly granted through- 
out Dudley's administration, and it might well be regarded as 
the minimum of decency. Bellomont his predecessor had 
been ill satisfied with £1,000. and Shute, his successor, received 
£1200. Dudley himself intimated that it was only his own pri- 
vate estate that enabled him to live on such a pittance.^ 



' Acts and Resolves, VIII. 519. 

" Executive Council Records, VIII. 153. 

"Acts and Resolves, VIII. 555. 



IN PROVINCIAL MASSACHUSETTS. 73 

Shute came instructed in much the same terms as was Dud- 
ley, though the province of Massachusetts, it was said, "has not 
hitherto taken any manner of care in that matter."^ A house was 
provided for him, so he was spared the pain of insisting- on that 
detail. In his first speech, November 7, 17 16, Shute informed the 
court of his instructions,- but as usual received only a grant of 
£500 "for his support in managing the affairs of government."^ 
The following April the house declared that, "considering our 
constitution, it will not be for His Majesty's service nor for the 
good and advantage of his subjects here to have fixed and stated 
salaries, but that we shall very readily do according to our ability 
what shall be proper and necessary for the support of His Majes- 
ty's government over us."* The next day "in consideration" that 
the governor had said "that he came with the utmost resolution to 
study the true interest of this province," which is "very grateful 
and acceptable to this house," an extra £300 was granted f Shute 
accepted it, saying it "will help the defraying the charge of my 
transportation." In the May session the new house granted £500 
for half the civil war.® Shute reminded them that owing to the 
inflated condition of the currency this was not more than £250 
sterling, and complained that "the expense I am at even with 
decency to support my character is greater than you may possibly 
imagine." In November another £500 was granted,'^ and in Feb- 
ruary, 1 7 18, still £200 more,^ "in Consideration of the Dearness 
of all necessaries of House Keeping." 

This total of ii200 was continued till 1720, the year of 
Shute's most acrimonious disputes with the house. At this time 
the semi-annual allowance of £600 was reduced to £500, notwith- 
standing the expression of the unanimous desire® of the council 
that the allowance be not less than during the last three years. 
Here was a plain case, (in fact, the only one) in which the house 
administered discipline to a governor for opposition to its policy by 

^ House Journal, December 17, 1720. 

'Court Records, X. 92. 

''Resolve 1716, c. 151. 

* Court Records, X. 126. 

= Resolve 1716-7, c. 161. 

'Resolve 1717-8, c. 62. 

' Resolve 1717-8, c. 133. 

"Resolve 1717-8, c. 161. 

"Court Records, XI. 104. 



74 CONSTITUTIONAL CONFLICT 

actual reduction of his salary. Shute addressed a joint session 
of the two houses/ said he expected ii20o as formerly, especially 
since the value of the paper money was sinking. The salary in- 
struction was read. To his exasperation the house replied that 
it thought it had made an honorable allowance, and since "the 
affair of settling salaries is a matter of great weight and wholly 
new to this House," it desired postponement till more should be 
present. The appropriation was accepted. At the next session, 
upon Shute's expostulating^ against the new figure, the house 
replied that the resolve of last session was adopted "after a free 
and full debate, and carried by a very great majority of the mem- 
bers of the House." They considered the present allowance "as 
much as the honor and service of this government call for," and 
at that figure it remained during Shute's administration. 

In the July session of 1721 occurred another instance of the 
exercise of compulsion on the governor in the action of the house 
on his allowance. Toward the end of the session the house sent 
to the governor to know whether he had passed upon the elections 
of impost officers, which, besides the joint vote of the two 
houses, required his signature. Shute replied rather testily that 
he had sent down ten times that he had that list under considera- 
tion, and that he might as well send down to the house to know 
what they had done about his salary, and that the house knew 
what they had to do. The house thereupon laid down 'the propo- 
sition that they were accustomed to have all legislative acts of 
this sort completed before they entered upon allowances. The 
governor made an equally high claim, viz., that he was not accus- 
tomed to sign the elections and resolves till after the allowances 
were passed. The issue of fact was not resolved, but the import- 
ant thing was that he told the house "they might depend on it 
that he will sign everything before him before the court rises."* 
Upon this the allowances were passed. 

Discouraged by its experience with Shute and his assemblies, 
the board of trade appear on this occasion to have been ready to 
cut the Gordian knot; for in March, 1726-7, it made a represen- 
tation to the privy council "that since the people had, in opposi- 
tion to the royal instruction, reduced the governor to an avowed 

^ Court Records, XI. 108-111. 
Mbid, 113. 
' Ibid, 186-190. 



IN PROVINCIAL MASSACHUSETTS. 75 

dependence, it would be proper that he should be paid a salary 
by His Majesty at home, till the inhabitants of Massachusetts 
can be brought to a better temper." Granting that it was just 
and reasonable that the assemblies should be required to pay fixed 
salaries, "they considered the obtention of so desirable an object 
as beyond their influence or power, because their records demon- 
strated how often the same measure had been adopted without 
success." But the privy council determined to persist, and passed 
an order March 25, 1727, commanding Shute to acquaint the 
assembly "that if they hope to recommend themselves to the con- 
tinuance of Your Majesty's royal grace and favor, it must be 
by an immediate compHance with what has been so often recom- 
mended to them," viz., the granting of a salary of one thousand 
pounds sterling. Otherwise "it may be worthy the consideration 
of the Legislature ... in what manner the honor and dig- 
nity of 3'our Majesty's government ought to be supported in these 
Provinces." 

The death of George I vacated Shute's commission just as 
he was about to return to his province, but his successor, William 
Burnet, was instructed to the same purport. The necessity was 
emphasized of compliance to the extent of a fixed salary of £1000 
sterling, if the royal favor was to be continued, and in case they 
"shall not pay a due and immediate regard ... we shall look 
upon it as a manifest mark of their undutiful behaviour to us," 
requiring the consideration of parliament how the dignity of the 
government ought to be supported. 

Burnet's administration Vv^as one long controversy between 
governor and house on the salary question, in which all possible 
arguments were developed on each side, the governor standing 
consistently on his instruction, the house with equal determin- 
ation on its conception of the constitution. Burnet was personr 
ally attractive, had a reputation for dignity and efficiency as 
governor of New York, and the house let him know in the 
course of the dispute that it was not himself personally that 
they were opposing, but only the constitutional principle he rep- 
resented. Moreover, the salary question was now hardly at all 
involved with other constitutional difficulties, as had been the situ- 
ation under Shute. Hence we may say that the issue was fought 
out on its own merits., 



^6 CONSTITUTIONAL CONFLICT 

Arriving in Boston in July, 1728, Burnet made his first speech 
to the assembly, July 24,^ the occasion of a formal demand for the 
fulfilment of the requirement of the instruction, which he at 
once communicated to the general court. He adduced three argu- 
ments, the wealth of the province, evidenced by its leadership 
among the colonies in point of trade and population, and by the 
magnificent reception they had given him ; the example of the 
British parliament in granting the Civil List to the king for life ; 
and the constitutional necessity of a fixed salary, to preserve a due 
balance of powers in the provincial government, lest if one de- 
partment of the legislature become unable to support its dignity 
the whole suffer. He declared his intention as the king's officer 
"to act by his instructions and to have no inclinations, no tempta- 
tions, no bias that may divert him from obeying his master's 
commands," saying that the instruction should be "an inviolable 
rule for" his conduct, — the novel element in the situation being 
that in this declaration he meant what he said, and kept his word. 

After two days' debate, on July 27, the house voted £1700 to 
Burnet "to enable him to manage the public affairs of the gov- 
ernment and to defray the charge he has been at in coming 
hither." As being "the very thing against which the said instruc- 
tion is levelled," viz., an allov/ance, not a salary, Burnet declared 
himself "utterly disabled from consenting," lest he incur the king's 
displeasure. A week later, August 6 and 8, the £1700 was divided, 
£300 being granted and accepted" for the charge of his removal 
hither, but the remaining £1400, offered "to enable him to manage 
the public affairs", being refused. The house prayed him to accept 
it in that form, declaring that : "As the royal charter granted us by 
King William and Queen Mary of glorious memory has vested in 
the General Court, the power to impose and levy proportionable 
and reasonable rates and taxes, and to apply and dispose of the 
same pursuant to the rights and privileges inherent in us in com- 
mon with other his Majesty's freeborn subjects ." . . so we can 



^ For this and following speeches of Burnet, and the replies of 
council and house, see Council Records and House Journal, stib diebus; 
also the narrative of the salary controversy, prepared by order of the 
house April 17, 1729, entitled "A Collection of the Proceedings of the 
Great and General Court or Assembly of his Majesty's Province of the 
Massachusetts Bay." 

= Resolve 1728-9, c. 161. 



IN PROVINCIAL MASSACHUSETTS. 77 

with all sincerity assure you of our readiness to improve that 
power in providing for your Excellency such a support as shall 
be ample and honorable ; at the same time we humbly apprehend 
that his Majesty's service . . . will be best answered with- 
out establishing a fixed salary, and apprehending that we cannot 
in faithfulness to the people of this Province in any other way 
provide for your Excellency to accept the grant now made and 
herewith presented not doubting but that this and succeeding as- 
semblies will at the usual times cheerfully afford a support suit- 
able to the dignity of your Excellency's person and station." 
Two days later, August 9, the two houses agreed in a message 
to substantially the same effect, remarking also that "we esteem 
it a great unhappiness that his Majesty should think our method 
of supporting the governors of this Province a design of making 
them dependent on the people." 

Here was the issue clearly joined. A fixed salary was utterly 
refused. The plea was not the poverty of the province; for £1400 
was an allowance of unprecedented generosity in amount. Objec- 
tion was based solely on the constitutional privilege of the house 
to raise and dispose of public money without dictation even from 
home. The rights of Englishmen, as they understood and applied 
them to colonial conditions, should justify them in disobeying the 
instruction. The expression of confidence in the cheerful gener- 
osity of future assemblies deceived no one, especially as the court's 
language did not actually deny a design of making governors de- 
pendent. 

Burnet im.mediately replied, August 9. Ignoring the am- 
plitude of the allowance, he said it was not honorable, as it "im- 
plies no sort of confidence in the government," "making the sup- 
port of the government depend visibly on an entire compliance 
v/ith everything demanded by the other branches of the legisla- 
ture." He declared that it was a well-known, undeniable fact 
that allowances had occasionally "been kept back till all other bills 
of moment have been consented to," the allowance depending "on 
the obtaining such consent," a deprivation of the "undoubted right 
of an Englishman, which is to act according to his judgment." 
Therefore he should never accept a present of this kind. 

The houses differed in their manner of answering this mes- 
sage. The council was still of opinion that the purposes of the 
taxing power would be best answered without a fixed salary, and 



78 CONSTITUTIONAL CONFLICT 

that an allowance made at the beginning of the session implied 
confidence in the governor, and could not be regarded as an 
attempt to reduce him to subjection. This matter of balanced 
powers was taken up more boldly by the house. To follow the 
instruction would be to give up their money power and make the 
government "too absolute." Referring to the analogy of the Civil 
List, they could not have so much confidence in the governor as 
the parliament in the king; for the king's interest is completely 
identified with that of his subjects, while neither the prosperity 
nor the adversity of the province has any effect upon the gov- 
ernor's interest. Moreover, the dependence of the council and 
house on the governor in the case of his veto power upon laws, 
in that of his power of warrant from the treasury, in defence, 
and in other matters, constitutes "so vastly more than a counter- 
balance for any possible dependence of the governor upon them, 
that it cannot be thought that the Commander in Chief can be 
thereby prevented acting according to his judgment or remain 
without support, nor has there been any such instance here that 
we know of." Their frankness went to the extent of saying that 
as to "past conduct of Assemblys in making the support of the 
government conditional . . . it is not easy to say what men 
may have had or had not in their own views and thoughts, but 
this we can say, that to have done so, as the case might have 
been circumstanced, would not have been unreasonable in itself, 
nor without precedent from the Parliaments of England, when 
some of the greatest patriots and most wise and learned statesmen 
have been actors in them." As to confidence in the governor, 
they say, August 31, "the very method itself is founded on 
nothing else, inasmuch as they [the grants] always look forward 
and are given to enable the Governor to go on and manage the 
public affairs." 

After a dispute carried on for nearly two weeks by conference 
and message between the two houses, their respective positions 
were formulated on August 22, the house saying "that passing 
an act for fixing a salary on the Governor or Commander in 
Chief for the time being will be dangerous to the inhabitants of 
this Province and contrary to the plain end and design of the 
powers granted ;" the council declaring, "that the passing an act 
for fixing a salary on the governor or Commander in Chief 
without limitation of time may prove of ill consequence to the 



IN PROVINCIAL MASSACHUSETTS. 79 

Province," implying what they had declared August 20, "that 
a salary may be granted for a certain time to his Excellency 
William Burnet Esquire without danger to the Province," a con- 
cession in which the house refused to concur. 

Beyond this point little real progress was made, and the argu- 
ments tended constantly to wander from the main point, to become 
mere criticism and rebuttal of non-essentials. On August 28 the 
house expressed a desire for prorogation. The governor replied 
that the instruction called for immediate compliance with his 
Majesty's will concerning a salary, which would become impos- 
sible in case the court were prorogued. "Therefore I cannot 
agree to a recess till you have finished this matter for which the 
Court is now met." 

This attempt at compulsion did not help matters, nor did 
the threat veiled under Burnet's refusal of their renewed re- 
quest, on August 29, for prorogation. In announcing his refusal, 
he spoke of the withdrawal of his Majesty's favor, and said 
they "would be very concerned to find the Legislature of Great 
Britain taking into consideration the support of this government, 
and perhaps something besides, which I forbear to name," refer- 
ring probably to the "dissolution" of the charter by parliament. 
This had been hinted at in Agent Dummer's letter of March 10, 
1722, which he later brought to their attention, a letter in 
which, by Secretary Carteret's friendly advice, he strongly coun- 
selled Massachusetts to use more modesty and prudence in con- 
ducting her defence lest she be dealt with summarily by parlia- 
ment. 

The house replied on August 31 that whether or not the 
method proposed was prejudicial to liberty in Great Britain and 
the other colonies, the "British constitution differing from ours 
in many respects" and the motives of the other colonies being 
unknown, Massachusetts could not be influenced thereby. They 
insisted on their liberties under the charter, as a balance to the 
powers of the home government. Burnet's message of Septem- 
ber 2 emphasized skilfully the difference of opinion which was 
arising between the two houses, but argued that even if they 
were agreed, that would be a reason the more why the third 
branch (i. e., the governor) should not be dependent upon them. 
He taunted them with their low financial credit, proceeding 
"plainly from the want of a sufficient check in the other branch 



8o CONSTITUTIONAL CONFLICT 

of the Legislature to the sudden and unadvised measures of 
former assemblies." As to allowances looking forward and 
therefore implying confidence, he reminded them of the last 
previous session, when the "method of grants was brought to 
look directly upon the present business in order to compel a 
compliance; or if you like that better, to look backward by way 
of punishment for a denial."^ 

The next step was an appeal to the country, as it were. On 
September ii the house adopted an "Advice" drawn by a 
committee appointed four days previously, "to prevent any mis- 
representations that may be made to the several towns." Though 
there was no dissolution and hence no new election at this time, 
the close connection and intimate dependence between constit- 
uents and deputy made the house desire to "know the mind of 
their principals," and to desire still more that "their principals" 
should know the mind of the deputies, should be correctly in- 
formed of the doings of the session, and should have a proper 
apprehension of the arguments supported by the several parties 
to the controversy. As a conclusion of this "Advice" it was 
made to "plainly appear that we can neither come into an act 
for fixing a salary on the governor forever nor for a limited 
time." Four reasons were adduced, (i) "It is an untrodden 
path," with many dangers that cannot be foreseen; (2) under 
Magna Charta Englishmen may raise and dispose of public 
money without compulsion; (3) it will lessen the dignity of 
the house of representatives and hence destroy the balance of the 
constitution; (4) the house must not betray the privileges of the 
province, its duty being by charter to make such laws only as 
they judge for its "good and welfare." 

Burnet did not let this "Advice" go unheeded, but in his an- 
swer introduced no new argument. On September 21 the house 
renewed the grant previously offered but not accepted, of £1400 
"for his support in managing the affairs of the government" and 
added £1600, completing the year's allowance to £3000 in Massa- 
chusetts money, equivalent to the £1000 sterling which he was in- 
structed to demand ; but still it was in the obnoxious form that 
had been hitherto practised, and Burnet announced himself on 
September 23 "by no means inclined" to assume his Majesty's 

^ The house had refused to consider allov/ances, on the refusal by the 
lieutenant-governor to consent to the act for credit bills. 



IN PROVINCIAL MASSACHUSETTS, 8l 

displeasure by accepting the allowance in lieu of salary. He 
wrote to the board of trade, September 30, that he had no sub- 
sistence but perquisites from the shipping, amounting to about 
£200 pounds a year, but that he had refused to accept the three 
thousand pounds, since it was offered in the old form, "by which 
they may at any time bring the same difficulties on me that they 
have on former governors." But, notwithstanding the incon- 
venience he was suffering, he was so far from desiring leave tO' 
depart from the instruction and accept the gift, that he thought 
"his Majesty's authority in danger of being lost in this country 
if it be given up in this point." 

Still another heavy weapon the governor tried without suc- 
cess. He advised the house on October i that their issue of 
credit bills, upon which depended the province finance, was likely 
to be disallowed by the home government because of the con- 
tumacy of the province in the salary affair, and that the surest 
way to save the issue of credit bills would be to appropriate to 
the governor's salary a part of the 4% interest on the fund. 
But, because of the permanence of such an appropriation, the 
house refused, declaring on October 24 that such a procedure 
would be equal to fixing a salary, "which is concluded by this 
House to tend very much to the hurt of the people of this Prov- 
ince." 

Thereupon the governor adjourned the court for a week, to 
meet at Salem. His reasons for this move,^ given to the board 
of trade, were that, (i) Boston had instructed its representatives 
to vote against the establishment of salaries; (2) the people of 
Boston were continually trying to pervert the minds of the coun- 
try members upon this point, Salem, on the contrary, being well 
inclined; (3) Boston did not deserve the profit of the meeting 
of the court. He desired that the home government should dis- 
allow the act for bills of credit, and he hoped that parliament 
would take such action as would at least give the people "just 
apprehensions of losing" their charter "if they continue refrac-- 
tory." To the court he declared on October 31 that what brought 
him to the measure was the unanimous declaration of the town 
meeting of Boston against compliance with the salary instruction. 
This was taking upon themselves "what his Majesty calls un- 

' Palfrey, IV. 513. 
6 



82 CONSTITUTIONAL CONFLICT 

dutiful behaviour and attempting to give the law to the country," 
though in this attempt to influence other towns he had the "pleas- 
ure to observe that they had very little success." After two weeks 
the house replied, complaining of the "hardships and difficulties"- 
they were suffering at Salem, resenting the dishonorable impu- 
tation that they were under the influence of any single town, and 
declaring that "the reasons that prevailed with them to determine 
as they had, would go with them, guide and influence them every- 
where." With the argument that ensued as to the illegality of 
the court's sitting outside of Boston we are not here concerned. 
But Burnet assured the house that their desire to return to Bos- 
ton and their persistent contumacy only confirmed him in his 
opinion that the Boston prejudices had made deep impressions 
upon them, which only time and absence would remove. 

He called to their attention moreover the inconsistency of 
granting no salary to the governor, while the wages of council 
and house were fixed by law. With bitter irony he asked : 
"Would it not have been better to have waited till each session 
was over to see how much every member of either house might 
deserve by voting with the majority and to allow them wages 
in that case only, which is exactly the same measure which the 
house pursued with Governor Shute when they informed him 
that they expected the bills to be passed before they would go 
upon allowances."^ Nothing but exasperation could or did result 
from such a display of temper. 

The next step was the preparation by the house of a me- 
morial to the king, to justify their course and counteract the 
effect of the partial statement of the case he had presumably 
received from the governor's correspondence. They protested 
loyally that "nothing less than the prosperity and welfare of this 
your most dutiful Province could have prevailed with us to have 
done anything disagreeable to Your Majesty's instruction." The 
familiar arguments were used, such as the opportunity enjoyed 
by the governor, at a distance from England, to oppress the 
province unless induced to the contrary by his own interest as 
well as duty to his Majesty, and the fact that the Civil List at 
home was for life only. The governor was complained of for 
keeping the house in session so long at expense to the province, 
and for the removal to Salem. The unprecedentedly large grants 

^ Collection of Proceedings, 92-5. 



IN PROVINCIAL MASSACHUSETTS. 83 

to Burnet, notwithstanding these actions of his, were mentioned 
as evidence of a loyal spirit, "and we doubt not but that succeed- 
ing assemblies according to the ability of the Province will come 
into as ample and honorable support from time to time; and 
should they not, we acknowledge Your Majesty will have just 
reason to show your displeasure with them."^ 

The absolute refusal of a salary, and the direct appeal of 
the house to the king that he withdraw his instruction requiring 
it, gave the governor an opportunity to put an end to the intol- 
erable situation — an assembly in continuous session for five 
months with no legislative work to show for it. On the understand- 
ing that the dispute was temporarily transferred to the other side 
of the Atlantic, and that for the present occasion the house had 
lost its opportunity to show itself dutiful, the court was pro- 
rogued on December 22 to meet in April at Salem. Burnet 
expected no success in the salary conflict, he wrote to the board 
of trade, "till a censure of Parliament is passed upon the pro- 
ceedings of the Assembly which I hope Your Lordships will 
obtain so as to have it sent early in the spring before this Assem- 
bly expires."^ 

The home government, as was to be expected, supported 
Burnet against the appeal of the house. He was unable to obtain 
a copy of the memorial of the house, but informed himself of 
the substance of its contents and sent home such answer as he 
could. The chief burden of this answer was the proposition that 
"Governors are not the only persons guilty of ambition. The 
men that afTect to be popular in free nations have better oppor- 
tunity to get exorbitant power than any Governor, and that it 
has been such men that have commonly ruined the liberties of 
their country," — • in other words, an arraignment of the house as 
the tool of its leader, Mr. Elisha Cooke, who is made out to be 
a selfish demagogue, "a profest enemy to the King's lawful au- 
thority in this Province." 

The board of trade, in February and March of 1729, took 
into consideration the memorial and the answer and other cor- 
respondence, and gave a hearing to governor and house, the latter 
through its agent Francis Wilks and counsel, the governor 
through his brother Thomas Burnet and counsel ; the home gov- 

^ Collection of Proceedings, 97. 
'Palfrey, IV. 518. 



84 CONSTITUTIONAL CONFLICT 

ernment was represented by the attorney-general and solicitor- 
general. The governor's side was defended with no more than 
the usual arguments. The house advocates, on the other hand, 
were so bold as even to complain that the salary instruction was 
invalid, being obtained "without the privity of the people," who, 
if given opportunity, could have presented such reasons as would 
prevent his Majesty from giving such an instruction, since it was 
regarded as "contrary to the charter . . . which gave them 
a free liberty of passing laws for raising money for the defence 
and support of the government," — a claim of popular control 
over the crown's instruction of its agent that must have aston- 
ished the home authorities by its audacity. On March 27 the 
board reported its conclusion to the privy council. As to the 
desire of the house to make the governor "serve his interest" 
by governing the province well, this suggests on the contrary 
the "strongest reason" with the board for requiring a permanent 
salary, viz., in order that the governor may be free to do all that 
the prerogative interest demands, whether it please the province 
or not, without fear of losing his support. They propose that 
he be instructed to insist on a salary of £1000 sterling "by a law 
settled upon him during the whole time of his government." If 
the house do not comply, they know no way but that your Maj- 
esty "lay an account of their conduct before your Parliament." 
Burnet has acted "with honor and integrity" in refusing the allow- 
ances offered to seduce him (like former governors) from his 
instruction. 

The privy council received a report also from its plantations 
committee on April 22, "that the point contended for was to 
bring the Governor appointed by his Majesty over them to a de- 
pendence on their good will for his subsistence, which would 
manifestly tend to the lessening of his authority and consequently 
of that dependence which this colony ought to have upon the 
crown of Great Britain." It was "absolutely necessary . . . 
that a salary of iiooo sterling per annum should be settled upon 
the Governor during the whole time of his government." The 
king should be "humbly advised to order this whole matter to be 
laid before the Parliament of Great Britain." The committee also 
observed that Burnet had "acted with the utmost duty to Your 
Majesty and just regard to the trust reposed in him." The re- 
port was approved by the privy council on May 22, and it was 



IN PROVINCIAL MASSACHUSETTS. 8$ 

ordered that one of the secretaries of state "receive the pleasure 
of the crown thereupon."^ 

It is noteworthy here that while this was, as Palfrey calls 
it, "an absolute approval of the Governor's conduct," it was not 
an endorsement of his whole claim, but only of the portion of it 
on which he had the support of the province council, viz., that a 
salary be laid by law "during the whole time of his government," 
after the manner of the Civil List granted to the present king for 
life. It did not go as far as the instruction and insist on a salary 
for the "Governor for the time being." This may well be the mean- 
inf- of Chalmers's statement^ that Newcastle sent Burnet private 
instructions "to recede from his former demands of a standing 
salary." For on June 26 Newcastle wrote Burnet that the lords 
of trade and the lords of the committee of the privy council after 
full hearing of the case were both "of opinion that the salary of 
£1000 sterling per annum ought to be settled on you during the 
whole time of your government." This recommendation of a 
middle course, however, did not result in any abatement of the 
terms of the formal instruction. Newcastle's letter transmitted 
the order in council and said, there is "too much reason to think 
that the main drift of the Assembly , . . is to throw off 
their dependence on the Crown," that this has produced the final 
determination of laying the whole matter before parliament, which 
had certainly been done this last session if it had not been pro- 
rogued before the report was made to his Majesty. "It will be 
delayed no longer than the first meeting in the winter." 

At the opening of the April session of the Massachusetts 
assembly Burnet gave them another opportunity of showing that 
their "professions of duty and loyalty to His Majesty are more 
than words." But the house voted not to "come into further 
consideration of settling a salary on the Governor at the present 
session," and the time was largely occupied with a dispute between 
the two houses as to the support of the agents in England, the 
council refusing to concur in the appropriation because they had 
not been allowed to participate in the preparation of the memorial, 
and had not even seen the instructions regarding its presentation. 
Such agents, they held, must be regarded as responsible to the 
house alone, and ought not to be supported by the province. The 

'Palfrey, IV. 519, note. 
' Chalmers, Revolt, II. 129. 



86 CONSTITUTIONAL CONFLICT 

house was also charged with misrepresenting the council's atti- 
tude. The memorial represented the council as "concurring" with 
the house, whereas the council declared on April i8 its readiness, 
signified some time previously, to vote a salary, "for a limited 
time, having good reason to conclude that His Excellency judged 
himself at liberty by his instruction to accept thereof, and that 
thereby all complaints home of our non-compliance with his 
Majesty's 23d Instruction would be prevented."^ It would be in- 
teresting to know what "good reason" the council had for this 
opinion of the governor's willingness to deviate from the terms 
of the instruction. In all Burnet's public utterances he insisted on 
strict compliance, and we have no further information. 

On the failure of passage of the resolve of the house to pay 
its agents, the house could only vote its thanks to certain mer- 
chants for their advances on that account, and promise to "use 
their utmost endeavors" to reimburse them later. It instructed 
the Boston members to compile and publish all the proceedings 
had thus far upon the salary question, and was then dissolved. 
The governor refused to sign warrants for payment of the per 
diem wages of the representatives, declaring that "it may justly 
appear doubtful," since "near a third part of the time of the sitting 
of the General Assembly has been rendered useless by your refus- 
ing to do the business of the Province," whether the towns ought 
to bear an expense, the sole end of which was defeated."^ Prob- 
ably, however, he did not help his cause by this proceeding; for 
the questionableness of its justice gave the individual represen- 
tatives a very obvious and concrete grievance for exploitation in 
the election. 

The new house, elected as usual in May, 1729, spent short 
sessions in May and July upon other matters. In the August 
session Burnet brought up once more the salary question, being 
now prepared to acquaint the house with the action of the privy 
council. But the house, willing to take the risk of parliamentary 
action, merely affirmed its approval of the position of the preced- 
ing house regarding salaries, probably having private advice from 
England of the reluctance of the ministers to introduce such a 
question into parliament. Having been adjourned by the gov- 
ernor, this time to Cambridge, it made him a grant of £6000 "for 

^ Collection of Proceedings, 111. 
' Court Records, XIV. 239. 



IN PROVINCIAL MASSACHUSETTS. 87 

his support last year, and further to enable him to manage the 
affairs of government." That is to say, they were ready to give 
him £3000 a year (practically the sum demanded) notwithstanding 
his harsh treatment of them in adjournment to unusual places, 
but they would do it only in their own way, by annual grant. He 
refused it angrily. "If you will not comply with his Majesty's 
instruction you might at least forbear your endeavour to seduce 
one of his servants from his declared duty." That day he fell 
ill from exposure, and a week later he died. The court showed 
its regard for his person by giving him a sumptuous funeral. 

Lieutenant-governor Dummer immediately assumed the gov- 
ernment, and announced his determination to insist on the terms 
of the instruction. Writing to Newcastle on November 4, he 
described the circumstances of Burnet's death. On the question 
of "settling a salary during the governor's time," he said, "there 
was but 18 yeas against 54 noes, so that I cannot see the least 
prospect of having the matter done here ;" "shall press the Assem- 
bly at our next meeting on this point." At the next session, 
though the house made a grant of £750 to Dummer, he adhered 
to his instruction, and refused to accept it. He took the same stand 
in the case of a grant of £900 at the summer session of 1730, 
but just then came the news of his supersession. Tailer, the new 
lieutenant-governor, had no such conscience about his instruction, 
and consented to resolves^ for the benefit both of himself and of 
Dummer, who was thereby saved from loss, notwithstanding his 
fidelity. 

The death of Burnet gave a respite to the ministry in the 
dilemma arising from its disinclination to refer to parliament and 
its desire to use the threat of such reference as a means of coerc- 
ing the province. The home government could give the province 
one more opportunity to obey. If the new governor were skilful, 
i. was just possible that he might win the point, and at any rate 
here was a delay during which something might turn up. There- 
fore after getting the opinion of the agents of Massachusetts on 
November 6 that they knew of no intention on the part of the Mas- 
sachusetts assembyq to vary their last resolution, the privy council, 
on the suggestion of the board of trade, made the follovv^ing propo- 
sition on November 12 to the assembly. As a natural consequence 

'Resolves 1730, cc. 13, 9. 



85 CONSTITUTIONAL CONFLICT 

of the refusal of salary by Massachusetts, and because they seem 
"in some of their answers upon that subject to have forgotten that 
decency and respect which is always due to their governors," his 
Majesty was under the necessity of laying their undutiful behavior 
before parliament, especially since it appeared that the assembly 
'''for some years last past have attempted by unwarrantable prac- 
tices to weaken if not entirely to cast off the obedience they owe 
to the crown." But as personal quarrels may have given a tem- 
porary bias, their lordships "are for this time willing to interpose 
with His Majesty ... to suspend his just resentment till 
their Assembly shall have had one more opportunity of debating 
the weight of his royal instruction," and the consequence of refus- 
ing "so reasonable a recommendation." Their lordships propose 
to the assembly to pass a law "that the salary of their governor 
for the time being shall be £1000 per annum sterling clear of all 
deductions and that the said salary be constantly paid out of such 
monies as shall from time to time be raised for the support of the 
government and defence of the inhabitants of the said Province." 
Accordingly it was ordered by the privy council on December 2 
that "no proceedings be had on the order in council made on May 
22d last (i. e., for reference to parliament) until the effect of 
said proposition be known." 

There had been a slight hitch in the arrangement of this prop- 
osition, and what looks suspiciously like a surrender of their posi- 
tion by Wilks and Belcher, the agents of the house. On Novem- 
iDcr 6 the board had informally proposed to them "since the assem- 
bly of Massachusetts have already by several acts provided stated 
salaries for their Council and Assembly men, that they should 
make like provision of £1000 sterling per annum for their gov- 
ernor for the time being." The agents had at first answered that 
without doubt the assembly would comply, regarding this as 
"great condescension and goodness in the government here." But 
it turned out that by this extraordinary statement they meant "that 
as the acts providing salaries for their Council and Assembly are 
near expiring, that when the same should expire the Assembly 
would for the future provide for the Council, Assembly and Gov- 
ernor in the same manner, that is, by an annual resolve every 
session only, and not by act of assembly, nor for any fixed term 
whatsoever."^ Thereupon the board were aboyt to prepare a 

' Palfrey, IV. 534, note. 



IN PROVINCIAL MASSACHUSETTS. 89 

report on the "obstinate behavior" of the province, the signifi- 
cance of this dispute for the trade of Great Britain and the 
authority of the crown, when on November 11 the agents "ac- 
quainted Their Lordships that having reflected upon what passed 
when they attended the Board the 6th inst., having reconsidered 
their letters, and apprehending that the death of Mr. Burnet might 
have abated the animosity of the dispute between him and the 
Assembly, and have made some alteration in the temper of that 
Province, they were ready to transmit any proposition to the 
Assembly that this Board should make to them, and would, as 
far as was compatible with their stations, enforce the success 
thereof, and were informed by the Board that they would apply 
to his Majesty for leave to make them a proposition in writing,^ 
and would humbly entreat his Majesty to suspend his just resent- 
ment against the Province until such time as the effect of the 
said proposition should be known." This readiness to receive and 
enforce any proposition the board might make is a notable and sur- 
prising change of heart in the agents. Possibly they had by this 
time come to a new and more vivid opinion of the danger to the 
province from the then possible parliamentary action, and hoped 
that it might be warded off or at least delayed by the change in 
governor ship. Is it not also possible that just at this point Belcher 
openly abandoned the cause he had been sent to England to de- 
fend? This "readiness" manifested itself on November 11, just 
seventeen days before his appointment as governor. From house 
agent to governor was an amazing transition, but for a man of 
Belcher's ambition and easy political morals it was quite feasible, 
and the price paid for his official advancement, it may be sup- 
posed, was this treachery to his trust from the house, this readi- 
ness to urge the demands of the home government. 

As a result of proceedings thus far, the house had now in 
1730 a situation to deal with that was no better than that of two 
years before. Belcher's instruction was even more peremptory 
than Burnet's. Whereas the assembly has neglected the king's 
condescending permission that Burnet might accept £1000 if set- 
tled on him for the time of his continuance in office, "whereby 
they have justly incurred our displeasure," and whereas their 
conduct would have been laid before parliament but that the board 

^ This is the proposition described in the preceding paragraph. 



90 CONSTITUTIONAL CONFLICT 

of trade requested that they might have another opportunity, 
therefore if a salary (in the original understanding of that term, 
viz., for the time being) should not be laid forthwith, "you are 
required immediately to come over to this kingdom of Great 
Britain in order to give us an exact account of all that shall have 
passed upon this subject, that we may lay the same before our 
Parliament, unless you think it for our service to send some one 
else fully instructed." 

Belcher met the general court September 9, 1730, and in 
his first speech communicated this instruction, exhorting them 
after their long heroic struggle not to continue their emulation of 
Cato Uticensis to the point of self-destruction. Grants were made 
to him and accepted, of iiooo, £500, and 800 acres of land, in con- 
sideration of his services as house agent ;^ but upon the question 
"Whether it be the mind of the House to fix a salary on the Gov- 
ernor of this Province for the time being?" after a long debate 
the house voted on September 16 in the negative. The following 
day they passed a resolve granting £3000 to Belcher in the old 
form, and sent it up with a message declaring that the house 
"firmly believe that as this so all succeeding assemblies will with 
the utmost cheerfulness afford an ample and honorable support 
for his Majesty's government." They absolutely refused the com- 
promise proposal of the council on October i of a fixed salary 
during Belcher's continuance in office. On October 7 he wrote 
home to the board of trade that though it was the busy season 
when their private affairs call them home "I shall keep them sit- 
ting till they give a conclusive answer to this grand article." "I 
have a prospect of their making a dutiful and reasonable return 
to the proposal." But lacking Burnet's power of will he gave 
way soon (October 28) to their clamor for adjournment, having 
won no more than the bill of that same day granting him £2400, 
which, though no compliance with the terms of the instruction, 
he regarded as "going a great way further than they have ever 
yet done, and I think may be taken as a settlement during the 
present Governor's administration."^ The lords of trade re- 
marked thereupon that they "are at a loss to imagine how Mr. 
Belcher . . . could think that this might be taken as a settle- 



' Resolves 1730, cc. 44, 93, 129. 

^ Belcher to Newcastle, December 10, 1730. 



IN PROVINCIAL MASSACHUSETTS. 9I 

ment during his government."^ At the new session he succeeded 
no better, the house declaring January i "after the most serious 
consideration" of the salary instruction that "we apprehend the 
House ought not to accede thereto." Belcher dissolved the house 
the next day and summoned a new one. 

Addressing himself to the new house on February 10, 
Belcher said that he hoped after the "broils and confusions in 
which you have been so long and so unhappily involved . . . 
you are now come together to be the happy deliverers of your 
country from the troubles and difficulties that still hang over it. 
. Upon your present determination depends much of the 
future peace and welfare of this people. . . . Should you 
oblige me to put in practice that part of my duty to the King 
in making another voyage to Great Britain there to represent 
to his Majesty and his ministers your final refusal to support 
his Governor in the manner he has required, it must produce 
such consequences to this people as I am sure they will wish 
they had prevented." But the house knew its man. Belcher had 
until 1729 been a man of high prerogative principles.^ He had 
changed to become the agent of the house. He had then changed 
to become the enemy of the house. They now knew him to have 
only one political principle, viz., to serve himself. Upon this 
basis they were able to deal with him and win their point. 

On February 12, after consideration of the governor's 
speech, on the question, "Whether the House would fix a salary 
upon the Governor for the time being, according to his Majesty's 
27th instruction?" it "passed in the negative by a very great 
majority." The same answer was given on February 17 to the 

^ Acts and Resolves, II. 633. The bill had merely declared "that at 
the beginning of the session of the General Court in May next there shall 
again an Act pass for an ample and honorable support and suitable to 
the dignity of his station to his Excellency Jonathan Belcher Esq. in the 
management of the public affairs, and so annually at the beginning of every 
May session during his continuance in the administration of the affairs of 
this government and his residence here." This bill is to be found in Bel- 
cher's letter to the home governm.ent, December 10, 1730, in Sainsbury 
Papers, misc. files, Mass. Archives. It evidently does no more than 
promise an "ample and honorable" support at the beginning of each armual 
session, but gives no guaranty against variation in that amplitude and hon- 
orableness of support. 

^ Hutchinson, II. 331. 



92 CONSTITUTIONAL CONFLICT 

question, "Whether the House would settle a salary on His 
Excellency the Governor during his administration?" and on 
March g, "Whether they would make any grant for the support 
of His Excellency for any limited time?"^ That is to say, the 
house refused even the compromises proposed, which would have 
contented the board of trade before Belcher's treachery. But on 
March 4 the house passed a bill in what was equivalent to the 
old form, "for the support of His Majesty's Governor in the 
discharge of the honorable and weighty trust reposed in him ;" 
this was non-concurred by the council the next day. On April 
I the house observed to the board "that they humbly apprehend 
a compliance" with the salary instruction would "disserve the 
true interest of this Province in divers respects." But desiring 
to give honorable support to the governor, the offer of which 
he has rejected because of the instruction, "this House esteem it 
the indispensable duty of the Council and Representatives in 
General Court assembled humbly to address his Majesty," to 
show him the reason of the non-compliance, "that so His Excel- 
lency the Governor may have his Majesty's royal order of leave 
from time to time to accept the sum or sums that may be granted 
for his support." Two days later the council accepted the pro- 
posal, and the procedure was carried through. 

In these circumstances Burnet would have scorned such a 
proposal.^ But Belcher was made of differenst stuff, and wrote 
to Newcastle on April 26 that, seeing "no reason to think they 
will ever do anything further," he desired leave to sign the bill 
of October 28, 1730, as "a much better security for a Governor's 
support than anything has yet been done in this Province." At 
the regular May session of the new assembly the two houses 
passed what later became the act of 173 1-2, chapter 5, granting 
£5400 (including the lapsed £2400 of October 28, 1730), "for 
his past services since his taking upon himself the administration 
of the government, and further to enable him to go on in man- 
aging the public affairs."^ Belcher sent this home, weakly ad- 
mitting that it was "unanswerable" that "there is no prospect 
of anything to be done here conformable to His Majesty's In- 
struction." He prayed "the Royal Leave to sign the Bill." A 



^ House Journal, sub diebus. 

' His opinion is indicated in his letter September 30, 1728, above. 

"Acts and Resolves, H. 633. 



IN PROVINCIAL MASSACHUSETTS. 93', 

fixed salary "I am now fully persuaded will never be done unless 
by the Legislature of Great Britain." This despair of any better 
result was the burden of many letters from Belcher to various 
persons in England.^ Coupled with it was the strong desire of 
council and house, and, as a consequence of both, the governor's 
earnest and frequent solicitation that he be granted permission 
to accept the support as the court chose to give it. Belcher, with 
every means at his disposal, "improved his interest" to move 
the home government to grant his request. His correspondence 
is full of complaints and desire for relief ;- he cannot see that 
"my returning to Whitehall could be of any service," but only 
expense ; he believes that "they will not for the future recede 
from the quantum ;" "Nor can I see the receiving my support 
as the Assembly will give it can in the least measure prevent or 
defeat what his Majesty in his royal wisdom may think proper 
for the effectual enforcing his present Instruction ;"^ he cannot 
see the necessity of "starving the Governor till such 'time as His 
Majesty shall put his Orders into effectual execution."^ 

The result of this effort was that by orders in council he 
was granted the royal permission to accept the grants of the 
general court, at first an order for each bill,^ accompanied by a 
repetition of the original requirement of fixed salary,® a tediosu 
process involving much vexation and expense to Belcher. Finally 
on November 6, 1735, a general permission to pass the annual act, 
without reference home for specific orders of leave, was issued. 

^ To Newcastle, Belcher Papers, 475 ; to the lords of trade, ibid, 14, 
68, 307; to Martin Bladen, ibid, 63; to Townshend, ibid, 92; to Mured 
Popple, ibid, 469. 

" To Newcastle, the board of trade, Walpole, the Attorney-general,, 
the Lord President, hij son Jonathan Belcher, Jr., and his agent, Richard 
Partridge. Belcher Papers, 6 Mass. Hist. Soc. Coll., VI. 

'Belcher to lords of trade, October 29, 1731. 

" Acts and Resolves, II. 633. 

' 1781-2, c. 5, order in council Nov. 9, Acts and Resolves, II. 633-5. 
1782-3, c. 11; do. Feb. 21, 1738; ibid, 661. 1733-4, c. 12; do. Jan. 10, 
1734; ibid, 703. 1734-5, c. 18; do. Nov. 7, 1734; ibid, 746. 1735-6, c. 
23; do. Nov. 6, 1735; ibid, 790. 

" Provided nevertheless that this condesention on the part of the 
Crown shall not in any wise be drawn into President for the future, nor 
be in any degree construed to enervate the validity of His Majesty's former 
Instruction upon this Head." Acts and Resolves, II. 684. 



94 CONSTITUTIONAL CONFLICT 

It was a pure surrender. The home government tried to 
save its face by requiring that the annual act of allowance be 
passed at the beginning of the session, so that the appearance 
of compulsion was avoided ; but upon the crucial point, the tem- 
porary determination of the governor's pay for one year at a time 
by the general court, the province won a complete victory. 
Under Shirley, in 1741-2, the question seemed likely to revive. 
On January 21 and March 27, in successive sessions, he de- 
manded a regular salary of iiooo sterling, and supported the 
demand with an elaborate argument. But the house unani- 
mously declined to follow the suggestion, and upon the newly 
elected house taking the same position, he accepted their grant 
in the accustomed form, thus showing that the controversy was 
at an end. 

The charter power of the purse certainly favored the con- 
tention of the house. The governor might argue as he pleased 
about the desirability on general principles of the independence 
of departments, but the province did not wish an independent gov- 
ernor. Executive weakness and preoccupation, combined with 
indifference in the earlier days on the part of the home govern- 
ment, gave the province an opportunity, that was fully used, to 
develop a sentiment and a line of precedents for legislative con- 
trol of executive officers' salaries. When the time of trial came, 
in 1728, this was found to be too strong to break. 



CHAPTER VI. CONTROL OF THE TREASURY. 

Like the mother country/ Massachusetts bought her liber- 
ties. The power of the purse was a weapon with which she ex- 
torted privilege after privilege. It is peculiarly important there- 
fore to describe the shape this power took, its mode of action, 
and the extent to which its consequences were pushed. We shall 
consider in this chapter various phases of the dispute between the 
prerogative and popular bodies, regarding their respective finan- 
cial functions and powers. The control of the treasury will be 
considered from the points of view of income, of appropriation, 
and of audit. 

The raising of revenue, as might be expected in an English 
commimity at the end of the seventeenth century, was in all points 
subject to the consent of the popular body. Taxes, of whatever 
sort, were levied by the general court, composed of the house, 
the council, and the governor, acting concurrently. From 1634, 
almost the very beginning of the history of the colony, the func- 
tion of tax-levying had been performed not by the assistants alone, 
even though they were elected by the general court, but with the 
concurrence of the deputies, who were directly commissioned 
from their towns, and thus more immediately dependent upon the 
people. With an experience of fifty years of taxation entirely 
self-granted, it was hardly to be wondered at that the Andros 
system met stubborn resistance. Taxes laid by a nominated coun- 
cil, it was thought, with no sort of dependence on popular elec- 
tion, were unconstitutional and ought to be resisted, even though 
equitably levied and no more burdensome than under the old 
regime. It was for constitutional principle that the men of Ips- 
wich and Taunton protested and refused to pay council-laid taxes. 
Here was reason enough for the failure of Andros unless he 
should be equipped with sufficient force to crush a people stub- 
bornly attached to what they regarded as their constitutional 
right. A wise recognition of this fact secured the declaration in 
the charter that it should be for the general court to "impose and 
levy proportionable and reasonable Assessments Rates and Taxes 



' Hallam, Middle Ages, III. 162. 

(95) 



96 CONSTITUTIONAL CONFLICT 

Upon the Estates and Persons of all and every the Proprietors and 
Inhabitants of our said Province or Territory/'^ 

But it was not enough that the consent of the house should 
be requisite to taxation. From the analogy (however fanciful) 
between councillors and representatives on the one hand, and 
lords and commons on the other, the house developed an ideal 
toward which it strove, an arrangement in which the council was 
deprived first of the power of initiating, then, at least theoretically, 
of the right of amending, money bills. Since 1407 the commons 
had claimed the exclusive right to initiate, and since the Resolu- 
tions of 1671 and 1678, to amend.^ So we find the Massachusetts 
tax bills invariably originated in the lower house. During the 
first ten years of provincial administration there seems to have 
been no objection to participation by the council in the framing 
of the tax bill, by resolution proposing alterations, or by confer- 
ence between the two houses.^ It became customary for the house 
to send up "proposals," which the board discussed and perhaps 
amended, which the house then threw into the form of a bill for 
passage by both houses. Under Dudley, on November 3, 1702, 
when consideration was upon the repair of Pemaquid fort, the 
house refused to confer. The council insisted that the refusal to 
confer "upon that head or any other affair referring to the gov- 
ernment is a great infringement upon the rights and privileges 
of the Council." At this time the house yielded and a conference 
was held, but with the increasing of the prerogative tendency in 
the council under Dudley and Shute, the house came to a higher 
stand on the point, and by 1721 always refused conferences on 
money bills, as "not a proper subject for conference."* While 
the council in this later period usually refrained from attempting 
amendment, at any rate without conference between the two 
houses, the custom was, when the council suggested amendments 
whose utility the house could appreciate, for the house to with- 
draw its former bill and frame a new one, that the precedents of 
house origination might be unbroken.^ 

^ Acts and Resolves, I. 16. 

^ Medley, English Constitutional History, 279, 280. 

' E. g., December 8, 1692 ; June 15, 1694 ; June 2-25, 1698. 

* E. g., December 9, 1725. 

"E. g., the excise bill of 1726, Court Records, III. 186-199. 



IN PROVINCIAL MASSACHUSETTS. 97 

The form and duration of acts of taxation were such as to 
ensure popular control. The direct general property tax, the main 
financial reliance of the government, was granted each year (until 
1700 usually semi-annually) as a single lump sum in pounds, 
shillings, and pence, assigned to be paid by each town, after the 
manner of the "country rate" of the colonial days, which, when 
it had been once paid, ceased to have any force. This provided 
some 65 per cent, of the revenue. Some 20 per cent, came from 
the import and tonnage duties. These duties, though permanent 
in their nature, continuing practically unchanged from year to 
year, were nevertheless always limited expressly by the terms of 
the authorizing acts to the duration of one year. Some 10 per 
cent, of the revenue came from the excise on wines and spirits. 
This was passed in acts of varying duration. Until 1716 it was 
annual, like the impost, with which in fact it was usually joined 
in one bill. After 1716 it was usually granted for a term of five 
years,^ presumably for convenience of administration, and be- 
cause of its comparative insignificance as a means of financial 
control. 

For the immediate needs of the treasury, however, in the pay- 
ment of obligations, the government was much more dependent 
on the bills of credit, and their authorization came to be regarded 
as the "supply" of the treasury, while the taxes were looked upon 
as a fund for sinking them, or more remotely as a means of keep- 
ing up their credit. The supply was made in a resolve, which came 
at least twice in the year, but more often in emergencies ; it may 
even be said that this fact determined the number of sessions a 
court should hold, since the granting of supply would be regarded 
by the administration as the main business justifying the holding 
of a session of the court. Burnet supposed this form of supply, 
by resolve instead of act, to have been adopted because resolves 
were not required to be transmitted to England for the approval 
or veto of the privy council. He argued the matter with the house 
m 1729,^ and had the better of it for logic and ingenuousness. 
The practice was explicitly forbidden in Dummer's and Belcher's 
instructions, and was discontinued after September, 1729. 

' E. g. Act 1716-7, c. 1. 
' Court Records, XIV. 273. 

7 



98 CONSTITUTIONAL CONFLICT 

It was regarded as a settled principle then that the raising of 
revenue should be by the representative, not the appointive, body 
in the government. Whether or not the supreme representative 
body of the empire should have a part was not questioned practi- 
cally till many years after the charter was granted, but a hint was 
given, which might have prepared the colonists for what was 
to come in 1765. An act was passed by the general court October 
13, 1692, in which was included the declaration that "no aid, tax, 
tallage, assessment, custom, loan, benevolence, or imposition what- 
soever" should be "levied on any of their Majesties' subjects or 
their estates on any color or pretence whatsoever, but by the act 
and consent of the Governor, Council, and Representatives of the 
people assembled in General Court."^ There is nothing to indi- 
cate that this was a conscious protest against parliamentary tax- 
ation, but the privy council, perhaps suspecting colonial insubor- 
dination and claim of self-sufficiency, disallowed the act, as Chal- 
mers says, on Chief Justice Holt's advice, "because it contained 
what none of his predecessors had ever conferred." The reasons 
of disallowance given in the privy council's letter were the pres- 
ence in the act of clauses making lands and heritages free from 
■'year day and wast, escheat and forfeiture upon death of par- 
ents," except in cases of high treason," which is repugnant to the 
Laws of England," and for requiring bail to be taken in all cases 
but treason and felony, "which with other privileges proposed by 
the said Act not having been as yet granted by His Majesty in any 
of the plantations it was not thought fit in His Majesty's absence 
to allow the same."- 

But leaving aside the question of parliamentary taxation, 
Massachusetts was, in respect to financial control of the local 
administration, far in advance of those provinces where the "rev- 
enue" was fixed for periods of years and subject to no alteration 
by the legislature during its continuance, and was to that degree 
in a better strategic position for the constitutional conflict. 

The control of expenditure was a matter of more immediate 
concern to the conflict between prerogative and privilege. There 
was more uncertainty about the rights and powers of the two 
contestants, and more shifting of position in the course of the 
struggle. Yet the charter provision seemed too plain to leave room 

^ Acts and Resolves, I. 40. 
*Ibid, 41. 



IN PROVINCIAL MASSACHUSETTS. 99 

for dispute. The taxes raised by the general court were "to be 
issued and disposed of by warrant under the hand of the Gov- 
ernor . . . with the advice and consent of the Council for 
our service in the necessary defence and support of the govern- 
ment of our said province or territory, and the protection and 
preservation of the inhabitants there according to such acts as are 
or shall be in force within our said Province."^ That is to say, 
the general court should raise money and grant it to the king, who 
should spend it for the good of the province through the body 
presumably best qualified for that prudential service, the gov- 
ernor advised by the council ; but there should be a degree of 
popular control in that the main channels of outgo, defence and 
the support of the government, were to be regulated by the gen- 
eral court. The phrase "according to such acts" evidently meant 
general provisions," such alone as could be made by a legislature. 
Payment of the specific obligations which the province should 
incur under these acts, was to be ascertained and allowed by the 
executive body, being a merely ministerial, administrative act. 
Such was the practice of other provinces, at least in the early 
part of the period.- But Massachusetts, with her past, could pot 
allow the imposition of such a system without a struggle; and 
the outcome of this struggle, one of the longest and most stub- 
bornly fought of all^ was a wide divergence from the spirit of 
the charter and instructions. Massachusetts did not win the form, 
as she did in the salary dispute, but she won much of the sub- 
stance. 

The popular ideal, as contrasted with the above system evi- 
dently provided in the charter, was popular representative con- 
trol of money, beyond the point of its entrance into the treasury, 
and of more detailed and specific character than could fairly be 
indicated by the term legislation. Not only the raising, but also the 
spending of public money, should be by the general court ; and 
in the concurrent action of the two houses, not the council as 
the charter intended, but the house, should have the preponder- 
ating voice. The seventeenth century, the period of the self- 
governing quasi-commonwealth, gave a line of precedents which 
essentially, though not formally, favored the claim of the house. 



^ Acts and Resolves, I. 16. 

^ Greene, Provincial Governor, 121. 



100 CONSTITUTIONAL CONFLICT 

The "country treasurer" was annually elected^ in the general 
court of election, and his issuance of money from the treasury 
might be only upon the command of the assistants or the general 
court, whose servant he was." While the assistants were not re- 
garded as inferior to the deputies in those days, it was because they 
were recognized as the complete, sufficient depositary of the tradi- 
tional ideal of the colony. This character having passed largely to 
the house with the new charter, the assumption by the house of a 
preponderating influence on the whole financial process, came to 
be regarded as an object of the utmost importance. Under what- 
ever form the law might take, an arrangement practically amount- 
ing to this ideal must be attained. This is not presented as in 
any degree contravening the legal distribution of powers, but 
only to put into form the sentiment which seems to have been 
held by the colonists, and thereby to explain the consistent course 
followed by the house, of encroachment on the charter powers 
of the council. 

For the first ten years of the provincial period, the executive 
as well as the legislature being almost completely under colonial 
influence, (except in Bellomont's short term), there was little 
evidence of this spirit. But with the opening of the eighteenth 
century, and to a constantly increasing degree under Dudley and 
Shute, we observe the house encroaching on the council's dis- 
cretionary power of issue from the treasury, making separate 
legislative acts for the payment of province debts, and confining 
issues from the treasury to such matters as they had passed upon. 
The clin.ax was reached under Shute, when in 1721 it was pro- 
vided in a supply resolve^ that not even the muster rolls accord- 
ing to legal establishment should be paid until they had been 
passed upon and approved by the house. From this extreme 
claim, however, as will be seen below, it became necessary to 
recede. 

The control exercised by the house throughout the period 
was twofold — appropriation and audit, the determination first 
where the money should go, later whether or not it had gone 
there. These will be considered in turn. 



^ This practice was continued during the provincial period. 
^ Osgood, The American Colonies, I. 492, 493. 
=• Resolve 1721, c. 42. 



IN PROVINCIAL MASSACHUSETTS. lOI 

Appropriation was generally understood to be in the power 
of the general court. Issue from the treasury "according to 
such Acts" was the charter recognition of it, and another bit of 
evidence is a representation made by the board of trade to the king 
April 15, 1697, on the matter of salaries^ where it is said that 
the revenue of Massachusetts (by the new charter) "is disposa- 
ble by the Assembly there."^ The right to originate appropria- 
tions seems not to have been confined to the house, nor was there, 
on most occasions, any unwillingness to confer with the council, 
though we find, e. g., in August, 1728, and October, 1703^ in 
tiiiies of heated discussion, the house was unwilling to confer 
with the council on the bill for the governor's support, though 
willing to confer "on the subject matter of the bill." 

Three forms of appropriation may be distinguished, first 
the general terms in the preamble of each supply bill, designating 
the purpose for which the money was granted to the king; sec- 
ond, the contingent authorization of expenditure or actual appro- 
priation in general terms ; and third, specific appropriations, 
whether in advance or ex post facto. 

The purposes for which the taxes of various sorts were 
declared to be raised, the first species of appropriation, were 
necessarily stated in general terms for the most part, but a 
tendency may be observed to the use of more and more specific 
language. The tax of 1692 was granted in these terms : "We 
. . . being sensible of the necessity of raising moneys for the 
defence of Their Majesties' subjects and interests and prosecu- 
tion of the war against their French and Indian enemies, and 
for defraying of other the public charges of the Province" do 
give "unto their most excellent Majesties, their heirs and suc- 
cessors, to the ends and intents aforesaid" a rate or tax. De- 
fence and the support of the government, then, were the objects 
to which the public money might be appHed. Under this very 
vague limitation the governor and council were left free to 
decide in their own discretion upon the specific application. But 
almost immediately a tendency to greater precision in these sup- 
ply bills began to manifest itself. A good example of the new 
sort is the tax of 1697, "providing for the safety and defence 
of His Majesty's subjects and interests in this Province; for 

' N. Y. Colonial Documents, IV. 263. 
■•'Court Records, XIV. 133, 134, 419. 



102 CONSTITUTIONAL CONFLICT 

repairing and setting in order the Castle and fortifications about 
the same, and farther strengthening and enforcement thereof; 
the purchasing of provisions, ammunition, and other stores of 
war, the fitting, victualling, and manning of the Province Galley 
and fireship, the hire of transports and other vessels that have 
been here taken up and employed in His Majestie's service, the 
subsisting of seamen and soldiers posted in garrisons and sent 
forth in pursuit of the enemy, and for the support of the gov- 
ernment, and answering of the incident and contingent charges 
in and about the same . . . and of other the just debts due 
from this Province for the payment of such salaries, gratuities, 
and allowances as have been or shall be made by the General 
Assembly, and all such allowances and payments as are directed 
by any act of this Province, to be paid out of the public treasury ; 
and for the further support of the government, defence of the 
Province, and prosecution of the war against His Majestie's 
enemies ; and for no other ends or uses whatsoever." Here were 
the forms which expenditure for defence and the support of the 
government might take, well defined. Specific objects were men- 
tioned, e. g. the province galley and fireship, and the discretion 
of the governor and council was limited by a prohibition laid upon 
them of going beyond these authorizations in the terms of the 
act. The general court granted the taxes, as they were required, 
to the king, but he was to spend the money for these objects pre- 
scribed, and "for no other ends or uses whatsoever." The free- 
dom with which his Majesty might use the gift of his loyal 
subjects was usually limited either in this way or in the form 
used in the act of 1699-0,^ "to the end beforementioned, and 
for such other use and uses as shall be limited and appointed 
by this court and no other." But this phrase was dropped from 
the tax act of September, 1703, and did not reappear till the 
famous supply resolve of 1721, when it was the occasion of the 
dispute that resulted in the reservation by the house of the right 
to pass muster rolls. 

"Incident and contingent charges in the support of the gov- 
ernment" was an item of much importance in the list of author- 
ized expenditures, for the part it played in discussion, if not for 
its intrinsic importance. Manifestly, for convenience of admin- 
istration, since the house could not be in session all the time, 

' Acts and Resolves. I. 386. 



IN PROVINCIAL MASSACHUSETTS. IO3 

a certain amount of discretion must be left with the council to 
pay unforeseen charges (e. g. expresses, and the entertainment 
of Indian messengers), if effective provision were to be made 
for the payment of the public debts. The elasticity of such an 
indefinite term caused the house to regard it jealously, yet we 
find it included in the supply acts almost uniformly until that of 
July 3, 1708. From then until the misunderstanding under Shute 
it was omitted. In June of 1721 the house insisted on a supply 
resolve limiting the discretion of the council to certain enumer- 
ated uses "and no other ends or uses whatsoever," gaining also 
the much more significant power of examining muster rolls. 
The following year the problem was solved finally in the method 
of the resolve of March 22, 1722,^ a method followed from that 
time on, which granted £8000 for soldiers' wages and subsistence, 
£3700 for debts of the province and allowances by the court, and 
£300 for expresses, "together with all other unforeseen charges 
whether b}' invasion or otherwise arising in the recess of this 
court that demand prompt payment." The troublesome discre- 
tion should be allowed to the council, but it should extend only 
over an insignificant part of the budget, three hundred out of 
twelve thousand pounds (2^%). 

The tracing to its conclusion of the item of "contingent 
charges" has necessitated a slight anticipation. Coming to the 
second species of appropriation, viz., the contingent authorization 
of expenditure in general terms, we deal with what seems to have 
been the sole appropriative function of the house as contem- 
plated by the charter. By acts of the general court were regu- 
lated the rates of pay and subsistence for all branches of the 
military and naval service — at least after 1696.^ The establish- 
ment of pay for councillors and representatives was also by act ; 
and, by an inconsistency which Burnet did not neglect to point 
out, these salaries were practically payable to the office rather 
than to the man, that is, to the representative for the time being, 
an impersonal permanence which the house refused to extend to 
the pay of the governor. 

Casual payments v/ere also authorized, in the shape of 
bounties, whether industrial, for the slaying of wolves, the pro- 
duction of hemp, etc., which were usually permanent ; or mili- 

'Acts and Resolves, II. 235, 236. 
^ See below, Chapter VII. 



I04 CONSTITUTIONAL CONFLICT 

tary, for enlistment, or Indian scalps, which rested on annual 
or temporary acts. 

The third and last class of appropriations to be described 
is the specific allowances. These included first, appropriations 
in advance, as for public works, bridges, fortifications, pensions 
to individual soldiers (there being no general pension law), and 
miscellaneous "allowances" for various purposes ; and secondly, 
what might be called ex post facto specific appropriation, the 
ordering of allowances or gratuities to officers of the province 
(including a gradually expanding salary list), the recompensing 
of specific services already performed, the paying for goods pur- 
chased by the province, — in a word, payment of the "debts of 
the province," one of the general purposes for which, as stated 
in their preambles, the supply acts were passed. This indicates 
the relation between what we have called the first and third 
modes of appropriation. They were not mutually exclusive, but 
were two different views of one process. The general court 
granted money to the king for certain purposes. Not content 
with a greater and greater precision in the general definition of 
these purposes, it took care to prescribe the modes and the spe- 
cific forms which these purposes should take, ignoring the be- 
stowal of this function by the charter upon the council. 

The right to audit the public acounts, as a means of popular 
control of administration, had been long contended for by the 
commons of England with varying success, finally complete in 
1667.^ The representatives in Massachusetts were not slow to 
develop the same principle ; and against this, if the term audit be 
interpreted in its usual sense, the home government and its agents 
had no objection. The right was in fact guaranteed in the 
charter. The accounts of the treasurer were submitted to the 
house annually (until 1696 semi-annually), inspected by them, 
and passed as a resolve of the general court. These accounts 
were minutely itemized, and the house was thus enabled to find 
out precisely what payments had been ordered by the governor 
and council, and, if it seemed necessary, could present specific 
payments as grievances. The money being gone from the treas- 
ury, these protests against items as "not according to any act" 
would have no more effect than to furnish the council a guide 
in future as to the wishes and policy of the house. But they 

^ Medley, English Constitutional History, 242. 



IN PROVINCIAL MASSACHUSETTS. IO5 

served another purpose in giving opinion an opportunity to form 
itself on specific expenditures, and in showing the house how 
and where to tie the council's hands by greater precision in 
future appropriations. 

At one time the house attempted to extend this control and 
make it more effective by resolving, that if the treasurer should 
answer such of the council's drafts as were not conformable to 
the supply act, those items in his account would not be allowed 
by the house on audit. This would mean the introduction of a 
second discretion unknown to the charter (viz., that of the 
treasurer, in whose election the house was predominant), in 
addition and superior to that of the council, in the interpretation 
of the acts of supply and the applicability thereto of spec-fic 
payments. The attempt was strenuously resisted by the council,^ 
and the outcome was inconclusive. The occasion of this dispute 
was a vote of the council authorizing certain commissioners on 
an Indian negotiation to draw on the treasurer for what mig'it 
be "further necessary" for their expenses, and a second vote 
approving the commissioners' bill of £390, to meet which the 
council "thought the honor of the government concerned." This, 
the house thought, looked "little short of a dissolution of the 
very foundations of our happy constitution ;" the council might 
as well lay taxes ; perhaps if the commissioners had drawn 
£10,000 the council would have felt in honor bound to order 
payment.^ The incident was left unclosed, and no more was 
done about the matter, but the treasurer and council had received 
the thoughts of the house in no doubtful terms, which was per- 
haps all that was expected. 

This was only incidental to the settlement, now near at 
hand, of the whole question of financial control, and the relation 
thereto of the several governmental organs. 

The passing of muster rolls was the occasion of one of the 
sharpest of all disputes between governor and house. It was 
an attempt to establish a double control, for by general laws the 
wages of officers and soldiers and rates of subsfstence were fixed 
in advance. The question was only whether or not the actual 
allowance for payment of this, that, and the other garrison or 
party of soldiers, should be by the governor and council in the 

'Court Records, XII. 155. September, 1723. 
'' Ibid, 160. 



I06 CONSTITUTIONAL CONFLICT 

form of an executive order alone, or by the house, council, and 
governor in the form of a resolve, followed by the executive 
order, which was thereby rendered purely perfunctory. As the 
legal limits of the expenditure were set by the general court in 
any case, this right was insisted on by the house for the sake of 
a control not financial but administrative. It was a financial pre- 
text or cover for an attempt at control by the house over mili- 
tary affairs, the movement of troops and the size of garrisons. 

Down to 1 72 1 this purely ministerial function of giving 
approval of the muster rolls was performed by the governor with 
the advice and consent of the council, according to the plain sense 
of the charter. The act of 1694, "In Addition to the Act for 
General Privileges," though disallowed, had its effect on the action 
of the council for several years, in making the form of their order 
a little more precise. Each warrant for issue from the treasury 
had to express particularly the act by which the money was 
raised and for what particular service under that act the same 
was designed. 

In June, 1721, at the climax of the dispute between Shute 
and the house, the latter body insisted on adding to the supply 
resolve, after the enumeration of objects for which the supply 
might be used, the words, "and for no other uses and intents 
whatsoever." The council protested against such a phrase as. 
contrary to precedent, and as likely to cause inconvenience to 
administration, "incident charges" not being provided for. But 
the house would not yield, and the result of a ten days' dispute 
was a resolve passed July 6,^ which restored indeed to the council 
the clause providing for unforeseen charges in the recess of the 
court, but secured the following proviso, an innovation in favor 
of the house : "The Muster Rolls or any account of charge or 
expense on the Castle Forts or Garrisons shall not be paid until 
such Muster Roll or Account of Charge or Expence hath been 
examined and allowed of by this Court." Thereafter for ten years 
practically every muster roll appeared in the legislative as well as^ 
in the executive records of the council, its action in the latter capac- 
ity being purely perfunctory. The house was accustomed to refer 
the rolls to a committee, which would examine and report that 
the persons did duty as the rolls set forth, and that the sums 
should be allowed to the persons therein according to the roll,, 

' Resolve 1721, c. 42. 



IN PROVINCIAL MASSACHUSETTS. 10/ 

that the account was "right cast and well vouched," now and 
then omitting an item from a roll presented, because of the failure 
of the person entered to serve the time recorded.^ To the coun- 
cil's suggestion of a joint committee to examine the rolls in order 
to save time, the house uniformly made refusal.^ It was in their 
opinion the business of the house alone to originate this legisla- 
tion, and it was for the council and governor merely to concur 
and consent. 

Shute included this matter as one of the charges in his gen- 
eral arraignment^ of the encroachments of the house, rightly ex- 
plaining it as a cover for grasping control of the militia. The 
house defended itself with the disingenuous plea, that it was 
merely desirous of making sure that the payments on the rolls 
were for service actually performed according to law, not to see 
if its orders had been obeyed — ignoring the real issue, that this 
function of verification belonged by charter to the governor and 
council. Lieutenant-governor Dummer, who held the chief com- 
mand in the province during the five and a half years between 
Shute's unceremonious departure and Burnet's arrival, regarded 
the new system as a necessary evil, which he must accept and 
endure, contenting himself with "exhorting" the general court 
in his speech on May 29, 1724, "in your next supply to his Majesty 
for the service of this Province to avoid such restrictions as have 
of late very much employed us."* 

Burnet made a strenuous fight on this issue, but it was over- 
shadowed by the salary question, and neither matter was settled 
during his short term. Having early assented to one resolve in 
the new form,^ he refused his consent, though strongly urged 
by the house, to the supply resolve in the summer session of 1729, 
thinking it improper to consent to any form of supply but such 
as was practiced before 1721.® He argued that the governor's 
right as previously enjoyed had been wrested away by the house 
in 1 72 1, not by act but by resolve in order that it might not 



^ Massachusetts Archives, XCI. 30. 
= Court Records, XI. 192, 258. 

' Shute's Memorials of August, 1723, and March, 1724. Brit. CoL 
Papers. 

' Court Records, XII. 172. 
'Resolve 1728-9, c. 185. 
'Court Records, XIV. 253. 



I08 CONSTITUTIONAL CONFLICT 

be vetoed by the king/ "This is the very thing that Mr. Att'y and 
Soil. General observe upon the third article of Governor Shute's 
complaint."- Upon Burnet's death the supply resolve was con- 
sented to by Lieutenant-governor Dummer as presented by the 
house. But he wrote home for advice,^ saying that there had 
been opposition every year in council, but the "necessity of a sup- 
ply of the Treasury for the support of the government has 
weighed with me in the passing of it, as it has bin done for eight 
years past having no prospect of retrieving that article at pres- 
ent ; But it seems to me, that the clause in the charter upon which 
that matter depends, does require an explanation from the Crown, 
or it will be every year an occasion of further contention in the 
Legislature, to the prejudice of His Majesty's service and the 
public good."* 

By Belcher the matter was brought to a final issue, and set- 
tled, at least formally, in the council's favor. Dummer, in his 
second term as commander in chief, (that is, after Burnet's death) 
had been explicitly instructed'^ not to consent to the new form of 
supply resolve ; and the same instruction was continued to Belcher, 
and was early communicated by him to the house.® The preamble 
to the instruction showed upon what experience the home g'ov- 
ernm^ent founded its policy : "Whereas an unwarrantable practice 
hath of late years been introduced ... of raising money and 
supplying the current service of the year by a vote or resolve in- 
stead of by an act of Assembly, and of reserving thereby to the 
said Assembly a power of determining what accounts shall or 
shall not be paid even after service performed expressly contrary 
to the tenor of the charter" — therefore it was required for the 
future "that no money be raised or bills of credit issued . . . 
but by Act or Acts of Assembly, in which Act or Acts one or 
more clauses of appropriation may be inserted, but that the issu- 
ing of all moneys so raised or bills of credit be left to our Gov- 
ernor or Commander in Chief of our said Province, with the 
advice and consent of our Council according to their charter, 



'Court Records, XIV. 273. 

'^ Acts and Resolves, II. 574. 

"Resolve 1729-0, c. 68. Acts and Resolves, XI. 435, 306. 

*Acts and Resolves, II. 222. 

'House Journal, May 28, 1730. 

"Court Records, XV. 158-160. 



IN PROVINCIAL MASSACHUSETTS. 109 

subject nevertheless to a future inquiry at the then present or 
any future Assembly, as to the application of such monies." 

Accordingly Belcher announced, on April 2, 1731, in his 
speech to the general court that "for the future all accounts of 
service done for the Province are to be brought directly to the 
Governor and Council and to them only for passing and paying."^ 
The house did not let this go without answer, and sent a message- 
on April 20,- arguing that the house had a right to pass accounts, 
because there would otherwise be no means of stopping illegal 
payments. As to precedents before 1721, it was said that imme- 
diately after the coming of the charter '"accounts were passed on 
for payment by the House after service performed and common 
accounts of wages and subsistence not called muster rolls were 
not only brought originally to the House for their inspection and 
allowance, but were also sent down for that end by the Hon. 
Board," and also every year since, as was shown in the minutes of 
the proceedings, annually sent to England by the secretary, and not 
hitherto discountenanced by the home government. It was true, 
as has been shown above, that the house had been receiving and 
passing accounts for service performed, but these had been specific 
appropriations for objects not otherwise provided for, and had not 
been, like muster rolls, mere authentications of accounts already 
made legal by previous act. 

Here we see the issue defined^ and the parties in position. 
In A.pril, 1731, with great reluctance the house granted a supply 
of £6000 according to the instruction, omitting the clause which 
v/ould have restricted drafts to accounts passed by the house,^ 
but thereafter they refused to depart from their previous position. 
In contrast v/ith his vacillation on the salary question, the gov- 
ernor was firm in this case, and the resulting deadlock continued 
for two and a half years. Though the lack of supply caused great 
hardship to the creditors of the province, this did not afifect the 
governor's pocket, as the general court could and regularly did 
make special supply for his salary allowance. Perhaps for this 
reason he could more clearly see the constitutional significance 
of the issue. Firm before the house, he also steadfastly advised, 



' Court Records, XV. 57 
' Ibid, 67. 
Mbid, 78. 



no CONSTITUTIONAL CONFLICT 

the home government to persist. He wrote to Newcastle/ "All 
the struggle in that matter is for power; if every account of the 
Province must be subjected to a House of Representatives the 
King's Governor will be of very little signification. They that 
have the control of the money will certainly have the power, and 
I take the single question on this head to be whether the King 
shall appoint his own Governor or whether the House of Repre- 
sentatives shall be Governor of the Province."^ This was only 
two months after the house had shown equal determination in a 
vote on November 3, by 56 to i, that a relinquishment of the 
ground taken by the house "would necessarily tend to destroy the 
powers and privileges granted to the General Court in and by 
the royal charter."^ Moreover, on November 24 the house had as- 
sured the governor "that as long as this Assembly retain any re- 
gard to the great trust and confidence our electors have put in us, 
all efforts to persuade and induce us to forsake their true interest 
and bring them and their posterity under the weight and burden 
of such innumerable and inconceivable inconveniences as they 
firmly believe may soon be their lot and portion should the House 
give in to the aforesaid Instruction" would be fruitless. 

Three times in vain did the house appeal home for the with- 
drawal of this instruction, which the governor alleged to be an 
insuperable bar to his passing supply in the form desired by 
the house. On passing the supply of i6ooo in April, 1731, in 
terms which were in accordance with the instruction, an ad- 
dress to the king was formulated by the house, and in June 
another address was sent by the house and council together, pray- 
ing for the removal of this bar. But the privy council on De- 
cember 23, 1 73 1, advised the king to adhere to the instruction. 
At the end of 1732, on December 14, the houses voted concur- 
rently to address his Majesty again, "and in case the address have 
not the desired success that a memorial be laid before the Hon. 
the House of Commons if sitting, praying their intercession with 
"his Majesty that he would be graciously pleased to withdraw the 
instruction." This appeal to the commons aroused Belcher's in- 
dignation. He said it was "without precedent among the planta- 
tions ;" there was no occasion "for treating his Majesty so inde- 

^ December 26, 1732. 

^ So also he wrote to Walpole January 1, 1733. Belcher Papers, 493. 

' Palfrey, IV. 543, note. 



IN PROVINCIAL MASSACHUSETTS. Ill 

cently and disrespectfully." Considering that it was only inter- 
cession that was desired from the commons, it might be questioned 
whether there was disrespect in the form, but without doubt the 
intention was to bring political pressure to bear upon the ministry. 
In any case it was fruitless ; for the commons manifested their 
disapproval, and in an order in council of May lo, 1733, the king 
signified his "high displeasure" at these repeated applications, 
and the instruction was ratified and confirmed.^ 

The plantations committee of the privy council obtained 
the opinion of the attorney-general and solicitor-general, that 
the instruction was "perfectly agreeable" to the charter ; as to the 
issue of money, "the words of the Charter are very plain," that 
it be by governor and council, meaning "according to such gen- 
eral clauses of appropriation, describing the nature of the serv- 
ices for which it was given, as should be mentioned in such acts 
but not to restrain the Governor and Council from making such 
a distribution upon the particular articles of those services or 
from passing the accounts and paying the persons by whom such 
services should be performed in such manner as they should 
think fit consistently with the general clauses of appropriation. 
But such distribution of accounts and payments will be subject 
to future inquiries to be made in a regular method by the Assem- 
bly or House of Representatives as to the application of the 
money and the consistency thereof with the appropriating clauses 
for which a proper reservation is made by the instruction."^ 
The committee reported that the persistence of the assembly 
"evidently shows that their desire is to assume to themselves the 
executive power of the government of the said Province, and 
has a direct tendency to throw off their dependence upon Great 
Britain, which is so necessary to be maintained even for their 
own preservation," a notable insight into the essential character 
of the dispute. 

Another check, moreover, was received from the agent of 
the province in London. Wilks had written on October 23, 
1732, that he had been having conversation with several distin- 
guished persons, friendly to Massachusetts, including the Lord 
President of the Council, and that they all thought the province 
in the wrong on this matter. It was his advice that the province 

' Palfrey, IV, 545, note. 
' Acts and Resolves, II. 702. 



112 CONSTITUTIONAL CONFLICT 

address the king for relief from the ill consequences of such a 
procedure as the instruction required, rather than insist too 
strongly on the right. He seemed to fear a possible untoward 
result from too great obstinacy. "I with great submission offer 
my thoughts that it would be most wise and prudent for the 
General Court to settle the matter without its being brought into 
a dispute with the Crown on this side than afterwards to com- 
ply." Belcher used this to intimate to the general court a pos- 
sibility that the deplorable undefended state of the province, due 
to the lack of money which the general court should supply,^ 
might lead to the king's "taking the necessary care for support- 
ing his forts and garrisons as well as every other part of his 
government." In other words, if the house insisted on too much, 
it might lose every part of its control over the executive. As 
usual, Massachusetts stopped just short of the danger line. 

Now that all hope of the withdrawal of the instruction was 
gone, the house must choose between a compliance therewith 
and a further continuance of an intolerable situation. The treas- 
ury had now been empty for more than two years, and the debts 
of the province amounted to tens of thousands of pounds. The 
province could pay and wished to pay its debts, and repeatedly 
passed bills of supply sufficient therefor, but the governor was 
unwilling to allow it to pay its debts except in this form obnox- 
ious to the house. It became evident that the governor would 
not yield, and it was not the governor but the undefended prov- 
ince that was suffering from a continuance of the quarrel. The 
result was the passage at last, in October, 1733, of an act grant- 
ing a supply of £76,500, from which was omitted the long pro- 
tested clause that would have restricted its issue to warrants 
passed by the house. ^ It was accompanied by a long message, 
in which the house protested against the reception of this action 
as a precedent in prejudice of their right. Since there had been 
no general supply since September, 1730" (over three years), 
"considering that great distress and difficulty are like to rise from 
an empty treasury," the representatives, "out of their great zeal 
for his Majesty's honor and service and their earnest desire to 
preserve the public peace and quiet of the government, to dis- 
charge the debts and to render to everyone their just due, have 

' Act 1733-4, c. 7. 
' Act 1730, c. 3. 



IN PROVINCIAL MASSACHUSETTS. II3 

judged it more convenient to suspend the exercise of their right 
of examining accounts before payment in the present supply." 
They declare their continued belief, nevertheless, "that the royal 
charter doth empower the General Court to reserve to themselves 
[in the act for supply] the examination of accounts and in it 
to direct that money be paid out of the Treasury for the dis- 
charge of such accounts only of service performed as are allowed 
by the whole court," "leaving the exercise thereof to be assumed 
by any future Assembly." 

The house was defeated, but not routed. The concessions 
yielded to them in the instruction were realized to the full^ and 
broadly construed. The right of the house was retained, to audit 
the treasurer's accounts after payment and to complain of griev- 
ances in the warrants passed by the council ; and considering 
that the treasurer was elected by joint ballot, in which the house 
was predominant, here was a substantial guaranty against op- 
pression. It was true, as the house complained, that the passage 
of accounts by the council would require only four favorable 
votes, a mere majority of a quorum of seven, whom the gov- 
ernor might choose out of the twenty-eight members. But 
experience gave no reason to fear corruption, or application of 
money contrary to the laws, which were still the limit of the 
council's discretion; and there was always the political control 
annually exercised in the election by the general court, so that 
the governor's supposed four corrupt appropriators of the rev- 
enue could easily be dropped out by the house at the next election. 

But far more significant was the use now made (and hence- 
forth in all supply acts) of the clause in the instruction which al- 
loAved "one or more clauses of appropriation." For example, the 
act of 1733^ granted to the king £76,500 "for the necessary defence 
and support of this government, and for the protection and pres- 
ervation of the inhabitants thereof/' in thirteen items, whose 
funds were non-transferable, and which were remarkable for 
their extremely detailed provision, adopted apparently to exclude 
expansion at the council's discretion, viz. (i) £8,162: 12s. for 
wages and support of the Castle garrison" "and no other use 
whatsoever," the number of officers of each rank and of soldiers 
being specified ; seven other items of the same sort, for the "coun- 



' Acts and Resolves, II. 690. 



114 CONSTITUTIONAL CONFLICT 

try sloop" and six enumerated forts ; (9) £26,589 : 6s. for "grants 
made by this court, and stipends established by law, and nothing 
else;" (10) £15,063 :4s. for debts of the province "to persons 
who have served them by order of this court, in such matters 
and things where there is no establishment ; and also for paper, 
printing and writing for this court, the expenses of committees, 
public entertainments, the entertainment of Indians and pres- 
ents made them," the governor's visit to Saco, Province House 
repairs, indents, surgeons' accounts, supplying the forts with 
wood. Court House repairs, expresses, expense of a council 
committee to Rhode Island, repairing the Light House boat, 
treasurer's disbursements for forts, truck-houses, and the sloop 
in the country's service, and surveying new towns ; (11) £6500 
for wages of the representatives; (12) £2500 for wages of coun- 
cillors; and (13) £1000 for "contingent and unforeseen charges 
that demand prompt payment." That is to say, as a result of 
this conflict, the house had lost its usurped right to audit muster 
rolls, which was little more than a form ; but on the other hand 
it had allowed the council to issue warrants only within precise, 
narrow limits for detailed purposes, thus turning into a mere form 
the warrant power derived to the council by the charter. 

Such was the system of financial control in the province, a 
wide departure from the evident intention of the charter, but the 
natural result of a half-century of competition between two 
bodies, of which one must remain on the defensive, the other 
might use its great original power to make an active campaign 
and win additional powers. It was the house, then, that held 
the purse of the province, raising the public money by taxation- 
laws matured in its own wisdom, subject to the concurrence 
of council and governor ; spending the public money for purposes 
which were determined in full outline by itself, and in detail by 
a body politically dependent upon it ; finally, auditing the ac- 
counts of the expenditure, thereby completing a process in every 
step of which the people's money was virtually under the control 
of the people's representatives. 



CHAPTER VII. CONTROL OF MILITARY AND DIPLO- 
MATIC AFFAIRS. 

One of the most vital functions of colony government was 
defence, and the dispute between royal and popular sovereignty, 
or at least the struggle for practical control, extended not un- 
naturally to this important field. Colonial experience had accus- 
tomed Massachusetts to control of all military matters directly or 
indirectly by the popular will;^ including regulation by law of 
the general court, appointment of officers by the court of election 
or the general court, and supreme command by the popularly 
elected governor and assistants. The normal provincial govern- 
ment on the other hand, quite as much as a matter of course gave 
this control to the governor, the agent of the crown, and 
his appointees." In the general compromise between the two 
systems, embodied in the second charter, military functions were 
divided between the two powers. The governor as commander 
in chief was the military head of the province ; but the power 
of the purse, and the right to make laws (including militia and 
military laws) belonged to the assembly, and these powers tended 
to expand till they involved in a considerable degree the power of 
the sword, so dependent on the power of the purse in days when 
the support of soldiers and the building of fortifications must be 
financed largely by direct taxes, whose burden was very keenly 
felt. 

As in the colony days, the system of defence was essentially 
a militia system depending on the assize of arms, with universal 
obligation to service, rather than a military system depending on 
a standing army; and the approximation to the latter which was 
necessitated by the French and Indian wars was regarded as tem- 
porary, resting as at home on annual acts, that the subjection of 
the military to the civil power might be ensured. Thus the matter 
naturally became one phase of the tendency to subordination of 
the executive to the legislative power. 



^ Osgood, The American Colonies, I. 521. 
^^Ibid. II. 378. 

(115) 



Il6 CONSTITUTIONAL CONFLICT 

By the charter the governor received "full power ... to 
train . . . and govern the militia . . . and for special 
defence ... to put in warlike posture the inhabitants . 
to lead them ... to encounter . . . destroy and conquer 
. . . all . . . such . . . persons as . . . attempt 
. the destruction ... or annoyance of our said Prov- 
ince . . . to . . . exercise the law martial in time of 
actual war and also ... to erect forts . . . and the 
same to furnish with all necessary ammunition, provisions and 
stores of war."^ Yet the whole militia system rested on a law of 
the province, passed by the assembly and assented to by the gov- 
ernor in 1693, which went into great detail regarding the liability 
to service, the arms required, the view of arms, the frequency of 
trainings, the manner of appointment of officers, — all practically 
a continuation of the colony system.- This was supplemented by 
a law of 1697,^ empowering officers to pursue the enemy, provid- 
ing for calling their regiments together on alarm, enjoining obedi- 
ence to superiors. The principal innovations of the provincial 
system were that appointment of commission officers was to be 
no longer by the general court, nor even by the governor and 
council, but by the governor alone; and that while the command 
of the forces was still in the governor, that officer was now a 
royal, not a colonial, functionary, control thus being exercised 
from above, no longer from below. 

The embodiment and organization of the military forces on 
a war footing was a different matter. The supreme command 
was in the governor by virtue of the charter, and the gov- 
ernor in this respect might be viewed from above as a part 
of the imperial military system commanding the English 
forces of Massachusetts, as well as from below, as the military 
head of the colony organized for self-defence. Ideally, for the sake 
of the military dependence of the colonies, the former aspect 
should have been emphasized, the governor defending the colony 
by means of imperial troops paid and directed from home, to whose 
support the colony would contribute proportionately, but indirectly 
through the British treasury. Bellomont saw this point, and was 
in theory opposed to the colony's defending itself, seeing that the 

^ Acts and Resolves, I. 18. 
= Act 1693-4, c. 3. 
"Act 1697, c. 1. 



IN PROVINCIAL MASSACHUSETTS. II7 

independent spirit of colonial self-sufficiency would be fostered by 
the consciousness that its defence depended upon itself without the 
help of the home government. But whatever the imperial ideal, 
the actual fact was that the colony defended itself, raised its own 
troops, regulated them by its own laws, paid them wages and 
supported them, and only incidentally used the governor as com- 
mander in chief. 

Not only the command of the troops but also the appointment 
of military officers, was in the hands of the governor, and this 
latter act was one of the very few which he might perform with- 
out the advice and consent of the council. It was his peculiar 
function, and the house made no encroachment upon it, except in 
the misunderstanding under Shute and Dummer, when on several 
occasions interference by the house took the form of desiring 
the governor to remove an officer for alleged dereliction of duty. 

Forces were organized in accordance with acts of the gen- 
eral court, and the means used to keep control of the army 
and ensure subordination of the military to the civil power was 
the familiar English one of annual acts. The establishment of 
military discipline and the authorization of courts martial for en- 
forcing it, depended on acts passed with a time limitation, usually 
one year, which were omitted in time of peace. The first one 
^vas passed in 1700;^ hence it is to be inferred that until that date 
this had been a power uncontrolled in the hands of the governor 
and assistants, who were still regarded as a popular body. A pre- 
cise definition of crimes in this jurisdiction was not made until 
1704,- when penalties were assigned by an act of the court, 
which left a good deal of discretion to the commission officers, 
but safeguarded the rights of the individual before the court 
martial. 

There was a considerable body of legislation of much the 
same nature, upon which the efficient prosecution of a war de- 
pended, which was at first passed in the form of annual acts, some- 
times even for a shorter period. It was omitted in time of peace.^ 
These acts (i) offered bounties for Indian scalps or captives; (2) 



'Act 1699-0, c. 21. 

'Act 1704-5, c. 7. 

^ In Dummer's time the legislation was passed to continue in force 
during the war, this laxness being made endurable by the control the house 
was then enjoying over the passage of muster rolls. 



Il8 CONSTITUTIONAL CONFLICT 

forbade desertion of the frontiers by the inhabitants of the towns, 
except under license;^ (3) permitted the governor and council to 
transport the militia out of the province for the defence of neigh- 
boring colonies;- (forbade arrest of bona fide soldiers for debt;^ 
(5) provided for levying soldiers, described the method of im- 
pressment, time during which pay should run, etc. ;* (6) prescribed 
the procedure in issuing supplies and pay.'^ By making these 
acts temporary, and of no force in time of peace, the practi- 
cal result was secured that the power of making peace and war 
w^as in the general court, since no war could be carried on (be- 
yond the mere rendezvous on sudden alarm) without these acts, 
and for their passage a general court was necessary ; and by means 
hereafter to be described the passage of these acts might be made 
the price paid for yielding to the general court a considerable 
measure of control over the troops thus authorized. 

Almost from the very first, the pay of officers and soldiers 
was fixed by the general court. Until 1696, it must have been 
by the governor and council ; for there is no mention of the matter 
among the acts and resolves of the court. Presumably the old 
scale of wages customary in the colony was continued without 
question, the governor and council merely supervising the auto- 
matic application of that law to the muster rolls of garrisons and 
companies of soldiers. But with the change in the value of money 
consequent upon the issue of credit bills in 1690, and with the 
more frequent calls for soldiers in King William's wars and the 
additional inducements required to be offered to soldiers enlist- 
ing, some change soon became necessary, and considering the 
jealous regard of the house for the appropriating function it was 
to be expected that so large an item as soldiers' wages and sub- 
sistence would be brought under the control of the body claim- 
ing the right to dispose of the people's money. In 1694 a bill 
establishing a detailed schedule of pay for privates and officers, 
and rates of subsistence, was passed by the house and concurred 
in by the council. The bill failed to pass, however, owing probably 
to the opposition of the lieutenant-governor, in defence of what 



^E. 


S-, 


Act 1694, c. 25. 


^E. 


g; 


Act 1694, c. 11. 


^E. 


g; 


Act 1704-5, c. 10. 


^E. 


g; 


Act 1693, c. 9. 



E. g.. Act 1703-4, c. 7. 



IN PROVINCIAL MASSACHUSETTS. II9 

he regarded as his military prerogatives.^ Substantially the same 
bill came up in 1696 and was passed, the occasion having been the 
dispute on the pay of Captain Church's men, who, relying on the 
promise of the council, expected more pay than the house was 
willing to give.^ From now on the establishment of wages was a 
recognized function of the general court. The resolve of 1696 
was to continue in force only twelve months, but none was passed 
at its expiration, and it was presumably followed as the "customary 
wages" until further positive action should be taken. Dudley seems 
to have regarded this, as he did all action of the house in military 
affairs, as mere advice ; and while he might or might not follow 
their advice in other matters, he was careful to follow it in such 
an affair, where by refusing to pass supplies they could thwart 
him. He would be especially ready to follow their advice here, 
as the soldiers' pay was a thing which it would be the interest 
of the house to keep up to the highest point demanded by efficiency 
in enlistment. So in 1703-4, v/hen the house passed a new estab- 
lishment,^ though there is no evidence that the council and gov- 
ernor took final legislative action upon it to make it a resolve, 
yet it was followed as authoritative in the passing of muster rolls. 

As a matter of course, bounties and special gratuities to sol- 
diers were originated by the house, being in addition to the "ac- 
customed" or legal wages. 

The passage of muster rolls (1721-1730) was a species of 
double control exercised by the house over the pay of soldiers, 
ostensibly in order to assure itself that the pay was delivered ac- 
cording to law ; actually in order to give the house an opportunity 
to condemn a policy already carried out, that the governor might 
in future avoid policies displeasing to the house. (Chapter VI.) 

Direction of military affairs is naturally an executive func- 
tion. In the colonial period the movement of troops and the 
assignment of garrisons had been the function of the governor 
and assistants, effii.ciency and definiteness of responsibility being 
thus gained without sacrifice of liberty or of civil supremacy 
over the military ; for the assistants were primarily a civil body, 
and the councils of war which assisted them on occasion were 
elected by the general court, which defined their functions and 

^ Acts and Resolves, VII. 534. 
= Resolve 1696-7, c. 56. 
'Resolve 1703-4, c. 76. 



I20 CONSTITUTIONAL CONFLICT 

absolutely controlled them. The language of the provincial char- 
ter v\^as plainly in favor of the royal governor as the director 
of military affairs. He it was who should "assemble in martial 
array and put in warlike posture the inhabitants, lead and con- 
duct them to encounter, expulse, repel, resist, and pursue by force 
of arms" persons enterprising the destruction or annoyance of 
the province. In words the house acknowledged this ; neverthe- 
less, in actual practice the first forty years of the province was 
a period of continual encroachment by the house upon the 
governor's prerogative — a prolonged effort, by the use of the 
power of the purse, to grasp that of the sword. It will be con- 
venient to consider first the forms of this increasing participation 
of the house in military affairs, secondly the means by which this 
encroachment was made, and thirdly the situation in Shute's ad- 
ministration, at the climax of encroachment. 

From the very earliest times the governor was accustomed 
to receive the advice of the house on these matters. Not a small 
number of the members were militia officers, and the localized 
representative system brought men together, with intimate knowl- 
edge of the military situation, from all parts of the province, 
even from the frontiers ; so that its advice was peculiarly valuable 
for the common cause of defence. Not unnaturally, then, the 
custom grew up under Phips and Stoughton, both of whom had 
been trained under the old system, of regarding representatives 
and assistants together as one grand council of war, to which 
should be referred intelligence from the seat of war and cor- 
respondence with the other colonies, and from which should be 
expected the maturing of plans based on the local knowledge at 
its disposal. But the line was difficult to draw between this valued 
advice, and actual command, or the authoritative responsible di- 
rection, which undoubtedly belonged to the governor alone. The 
governor at all times regarded the expression of the will of the 
house upon military matters as mere advice which he might or 
might not follow. Dudley not infrequently told the house as 
much, but so long as he actually followed the advice, he was 
giving strength to a line of precedents which it became more 
and more difficult to break. Gradually, in the first two decades 
of the provincial period, the house got into the habit of (i) 
assigning periodically the numbers of soldiers who should be 
posted at the various garrisons and forts; (2) detailing the 



IN PROVINCIAL MASSACHUSETTS. 121 

plans of campaign, determining to what places bodies of troops 
should be sent, and the number of men of whom they should be 
composed. In 1723, in fact, the house made an attempt to have a 
joint committee appointed, to sit during the recess and conduct the 
war. Naturally the council non-concurred, and that was the end 
of the effort. But the attempt to assign troops to garrisons and ex- 
peditions could be more easily justified from the superior local 
knowledge of the representatives, and at least on one occasion, 
September 8, 1721, Governor Shute of his own motion invited it. 
Such dispositions were made nominally by the governor, the 
house "desiring his Excellency to give orders" thus and so. But 
for all practical purposes the will of the house was law to the 
governor. 

The control of the purse was the means used by the house 
to secure this power. Expeditions might be determined upon by 
the executive, the number of soldiers needed at the garrisons 
might be decided by his discretion ; but the expedition could not 
be undertaken, nor the garrison maintained, without provision for 
pay and subsistence. The right to vote pay and subsistence was 
the weapon of the house, and it was used with its whole weight. 
If the determination of the governor as to military policy was 
contrary to that of the house, pay and subsistence could be re- 
fused and the governor would be powerless. On emergencies 
the governor would call out the militia to answer an alarm, and 
then expect the assembly, by whose tacit consent he had done so, 
to support the soldiers; but no active exertion of force such as 
an expedition against the enemy's position, and no permanent 
military expenditures such as those entailed by the maintenance 
of garrisons, could be made contrary to the will of the house. It 
is true, the actual conduct of military affairs was largely by the 
governor, because, as being a single functionary, in whom 
responsibility could be concentrated, he was the most suitable 
agent of the house, according to the familiar necessity in military 
operations ; but it was as agent of the house that he acted, not 
of his own right and prerogative, and in the last resort decisions 
had to be made by the house, for the reasons already stated. 

Even in his action as agent of the house he was limited 
in ways that must have been vexatious. For example, to limit 
the size of parties he might send out, it was sometimes provided 
in the resolve allowing pay that the pay of no officer above the 



122 CONSTITUTIONAL CONFLICT 

rank of sergeant or captain, should be allowed by authority of this 
resolve.^ 

The same principle applied in the control of defensive forces 
in garrison. If the house was of opinion that a certain post 
maintained by the governor was unnecessary or not of sufficient 
utility, it would declare its pleasure that the pay of that garrison 
be stopped. The matter came to an issue under Dummer in 
1723, immediately after Shute's departure. He reproved the 
house for its attempt to assume the military power of the exec- 
utive in presuming to "draw off the forces ;" whereupon the house 
answered him that it meant not to "draw off the forces," which 
was the function of the commander in chief, but only to "draw off 
the pay and subsistence of the forces,^ a difference which de- 
ceived neither the house nor the lieutenant-governor, but which 
illustrates the friction necessarily resulting from the governor's 
nominal exercise of a military power that was practically con- 
trolled by the house. 

Out of the practice of examining intelligence from the 
frontier, it progressed to desiring to examine the journals of the 
commanders of expeditions, and later, after continued ill-success 
in this encroachment in Shute's time, to requiring them to keep 
separate journals for the perusal of the house, besides their 
usual reports to the governor as military superior.^ The gov- 
ernor's instructions to officers it attempted to bring under its 
own examination as well, that it might make sure of his com- 
pliance with its recommendations, but here it gained little success. 
The power of the purse was difficult to apply for such a purpose ; 
for it was obviously unjust to stop the pay of officers and men 
after they had performed service, merely for the reason that the 
governor's instructions to them were contrary to the desire of 
the house, and it was difficult to compel the governor to divulge 
his correspondence with officers. In case the house suspected 
irregularities in the conduct of officers it might (as it did in the 
case of Woodsides in 1727, and others) stop their pay for some 
time, while it conducted its own investigation. Such a procedure 
must have weakened discipline, since officers and men would see 
that obedience to military superiors was not the most sure method 

' E. g, September 20, 1723. 
' Court Records, XL 479. 
^Act 1722-3, c. 12, § 11. 



IN PROVINCIAL MASSACHUSETTS. I23. 

of advancing their interest; and the entrance of politics into the 
militia had its natural result in the insubordination common and 
evident in the later intercolonial wars. The same would be the 
result of such experiences as that of Major Moodey in 1722, who 
was apparently persecuted by the house because of the personal 
jealousies of the members.^ 

In 1722 a keen dispute^ arose over the house sending a com- 
mittee to see the militia of the eastern counties paraded. It could 
only be done by the governor's order, which in this case was 
apparently given without full understanding of the purpose of 
the house (viz., to investigate the causes of the desertions then 
so prevalent, — probably a cover for the attempt to discover tlie 
reason why the soldiers were dissatisfied with their officers). 
Such irregular investigations also must have weakened the ordin- 
ary methods of discipline and the responsibility of military su- 
periors. 

The stores of war would be expected to be subject to the 
control of the military head of the province ; and yet the house 
more and more participated in this function. As it was an "affair 
of money," since the house had to buy the stores, it proceeded to 
dispose of them, either through committees or by resolves directly 
commanding its officers, the treasurer, or the war commissioners,, 
to send the stores in such and such quantities to such and such 
places. 

A question long argued between the governor and house 
was the building of fortifications, but it was rather the expedi- 
ency of particular fortifications that they were arguing than the 
right to control. By charter, the governor was given the power 
to erect fortifications. But the costliness of such public works 
meant that they were impossible without the willing co-operation 
of the appropriating power, and the result was the absolute con- 
trol of this branch of military policy by the house. It was the 
assembly, which, on the advice of the governor, determined where 
and when forts should be built and contributions made to assist 
towns in their own defence ; also in some degree, how the money 
granted should be spent. Thus we find the general court devoting 
much time and attention to the reconstruction and repeated re- 
pair of the Castle in Boston harbor, building forts from time 

'Court Records, XI. 397, ff. 
^^ Hutchinson, II. 253, 258, 259. 



124 CONSTITUTIONAL CONFLICT 

to time on the expanding frontier, refusing the insistent demand 
of Dudley under instruction from the home government that Pe- 
maquid Fort be rebuilt and maintained, but later under Belcher 
repairing and maintaining it, when the growth of population in 
that direction had made it expedient in the eyes of the court. 

The climax of the encroachment by the house in military 
affairs was reached under Shute in the early twenties. On account 
of his inefficiency as compared with Dudley the house was led for 
the sake of the defence of the province to take a more active part, 
and it then made use of the forms of interference above described, 
Shute went home in disgust, January i, 1723, and laid his case 
before the king on August 22. A considerable portion of his 
memorial was devoted to other matters, as the invasion of the 
king's forest rights, the speakership and adjournment controver- 
sies ; but his five complaints against military encroachments by the 
house are worth glancing at here for the light they throw upon the 
situation as it was when he left it. They were as follows : 

1. Voting a committee June 13, 1722, to take account of 
stores at the Castle, without the permission of the governor. 

2. Ordering the treasurer to pay no more subsistence 
money to the Winter Harbor garrison, but to send the stores which 
were there to Boston. Later, Shute remarks, the house ordered 
the place re-enforced on petition of Marblehead that it was nec- 
essary for defence, shov/ing that his judgment had been correct. 
The house, he says, did not like the commander. 

3. Voting that Major Moodey be suspended, and refusing 
his pay, requiring him to attend the court and answer complaints 
(to the court) of allowing drunkenness and refusing aid to 
inhabitants, an accusation which Shute asserts (on the word of 
the officers) to be frivolous, made because Cooke and his party 
hated Moodey. He adds that the refusal of pay by the house is 
of no force, being non-concurred by the council. 

4. Mustering the militia before a committee of their own, 
November 17, 1722, to inquire about the causes of desertion. In 
violation of his order that the report be made to him as Captain- 
general, it was made to the house. 

5. Disposing of the forces, e. g. a resolve November 20, 
1722, continuing in service only 40 of the 108 men in Hampshire 
County, though "His Excellency" was to be "desired to express 
his orders accordingly." 



IN PROVINCIAL MASSACHUSETTS. I25 

By this memorial the whole business was brought to light 
before the English colonial authorities. The house sent an agency 
of its own (council non-concurring), and, ignoring the charter 
power, made its defence on the broad ground that Shute was not 
conducting the defence according to its will, that he had kept the 
house in a long vacation during the war, which he then conducted 
as he liked, the house finding afterward that the expedition they 
planned and provided for had not been undertaken. 

Shute returned to the attack with a second memorial, March 
5, 1724, complaining of the house for prescribing the rules which 
it was for the council to give, paying nO forces without seeing 
by the muster rolls that their orders were complied with, extend- 
ing their encroachments to the care of the Castle, assuming in 
January, 1723, to draw oflf the militia from the west, for which 
they had been reprimanded by the lieutenant-governor. 

So numerous were the complaints against Massachusetts at 
this time, so great seemed the danger to their charter (it was 
at this time that the Explanatory Charter was granted, settling 
the speakership and adjournment controversies), so uniform were 
the disapproving views of the conduct of Massachusetts which 
were held by the privy council, that upon this matter the agents 
deemed it wise to bend to the storm, since it here involved no prac- 
tical loss of power, but only a reduction of the extra-legal preten- 
sions of the house. The agents replied that the house ''had never 
pretended to subject the militia of the Province to their orders, 
knowing that power to be in the Commander in Chief ;" muster 
rolls are brought to set forth that the officers and soldiers have done 
their duty according to the laws passed and approved in England, 
not to "discover whether the orders [of the house] are complied 
with." This was about as ingenuous as the plea of the house to 
the lieutenant-governor that it only meant to "draw off pay and 
subsistence ;" but it was sufficient. The privy council supported 
Shute, declaring that he had "acted with great zeal and fidelity, "^ 
and charged the agents to stop the encroachments of the house 
on the employment of troops. But no measures were taken to 
stop that encroachment, and in the ways and for the reasons 
above described the house continued to use its control of the 
purse to secure practically complete control of the sword as well. 
This system, which we have seen develop in the early part of 
the provincial period, Chalmers found still in operation in the 



126 CONSTITUTIONAL CONFLICT 

last intercolonial war, which was, as he says, "conducted by 
Committees of Assembly."^ 

The conduct of foreign affairs is commonly regarded as pre- 
eminently an executive function, from the necessity which exists 
in connection with it of concentrated responsibility and dispatch. 
It is the last place in which to look for encroachment by the repre- 
sentative body, except in the way of an indirect influence. Yet 
we find the Massachusetts house claiming its share even in this 
department, and in some degree exercising direct control, certainly 
to a degree at times which divided the governor's responsibility, 
if it did not entirely relieve him. The colony was concerned with 
two sorts of problems, intercolonial affairs and relations with the 
French and Indians, whether hostile or submissive. 

The former was not an aifair of much consequence in the 
history of the relations between executive and legislature. It 
was the understood thing on all hands that the court (the gov- 
ernor, council, and house concurring) was the proper organ of 
the province for representing it in dealings with other colonies 
or provinces. The governor was the convenient intermediary 
for carrying on correspondence with other governors, but final 
action of the proAnnce in intercolonial relations required the formal 
sanction of the general court (tacitly given to preliminary nego- 
tiations), expressed in an act or resolve. 

Boundary settlements, the most copious source of interco- 
lonial disputes, were conducted by commissioners named and 
instructed by the general court. The correspondence connected 
therewith was carried on by the whole court, which framed and 
adopted plans of accommodation, sending letters in the name of 
the province, passed as resolves. This practice was common 
among the provinces. - 

Minor disputes also, such as concerned intercolonial impost 
or tonnage duties,'' were the subject of action by the whole court. 

Arrangements for defence as a matter for intercolonial 
co-operation lay on the border line between these matters of cor- 
porate colonial action, requiring the expression of the will of 
the province by its legislature, and the military affairs which the 
governor claimed to control Thus the correspondence was usu- 

^ Chalmers, Revolt, II. 300, 301. 
' Greene, Provincial Governor, 192. 
"E. g.. Resolve 1701-2, c. 31. 



IN PROVINCIAL MASSACHUSETTS. 12/ 

ally carried on by the governor acting in close communication 
with the two houses. He acted really as the spokesman of the 
house and council, and sometimes the letters themselves were 
written by the general court. For example, in 1694-5 Lieuten- 
ant-governor Stoughton carried on a long correspondence with 
Connecticut, requesting the co-operation of that colony in the 
defence of Deerfield and the Connecticut River region, in which 
correspondence one letter^ was "by command of the Lt.-Gov., 
Council and Assembly ;" and in 1696 the general court voted^ 
that an application be made to Connecticut and Rhode Island 
for help in the war, the house naming one of the commis- 
sioners for carrying on the negotiation, and expecting the gov- 
ernor and council to name the other. Also in refusing the 
quota of Massachusetts for the defence of New York, recom- 
mended by the home government and requested by Fletcher, 
Stoughton was glad to fortify himself behind the resolves of the 
court,^ which declared that, "we humbly offer" that the assistance 
cannot conveniently be rendered. The obvious reason for this 
participation of the house in the latter case was the fact that tlie 
. New York proposition involved the spending of money, which the 
house could refuse. In the former case the participation of the 
general court in the application for aid gave the additional force 
that the request was backed by a colony's opinion as well as a royal 
governor's requisition, and hence would be more agreeable and 
have greater likelihood of success. 

The conduct of Indian affairs was a more delicate affair 
between governor and house, involved so closely as it was with 
the conduct of military affairs. In the colonial period this had 
been a function of the governor and assistants, acting in close 
communication with the deputies ; that is, the business had 
been entirely in colonial hands. But the provincial governor 
represented an entirely different principle. It was still very 
desirable that the conduct of Indian affairs be in the executive, 
whei-e prompt action could be taken and strict responsibility se- 
cured, but with a changed basis for the governorship that would 
mean that its control had passed from the popular to the prerog- 
ative body. Was it to be an Indian policy according to Massa- 



^Resolve 1694-5, c. 62. 
''Resolve 1696-7, c. 76. 
''Resolves 1695-6, cc. 29, 38. 



128 CONSTITUTIONAL CONFLICT 

chusetts notions, or one framed on imperial lines, with ideals 
perhaps entirely different? 

The governor had certain points in his favor. It was the 
practice among the other provinces that treaties should be made by 
the governor, from the analogy with the chief of the executive 
in the home government, from his general power to act in mat- 
ters not otherwise provided for by the charter and instructions, 
and from his instruction to maintain a good correspondence with 
the Indians/ The necessity of correspondence with other prov- 
inces also, in which the governor alone was the diplomatic organ, 
favored the claim of the governor of Massachusetts to this func- 
tion. This unification, this imperializing of the Indian problem, 
was naturally urged in consequence of the manifest advantage 
enjoyed by the governor of Canada in the long conflict between 
New France and New England, through his ability to speak for 
all New France in negotiations, whether in offering conciliatory 
propositions or in making threats, while the resources of the 
English colonies were at the command of so many colonies, 
having perhaps divergent interests. Some recognition of this 
principle was found in the practice of appointing one governor 
for two or more provinces (e. g., Dudley for Massachusetts and 
New Hampshire, Bellomont for New York, New Jersey, Mas- 
sachusettSo and New Hampshire). In this way the unified action 
of the two or more colonies was secured in a measure by identity 
of executives. How much better if those executives could speak 
for their provinces without fear of disavowal by their assemblies. 
Also in dealing with the Indians the greater impressiveness and 
influence of a comm.and or offer coming from the Great Father 
in England speaking through his ambassador, the governor, was 
obvious, as compared with the conclusions arrived at by an assem- 
bly of deputies, some of whom were personally and perhaps famil- 
iarly known to the Indian ambassadors. 

In the early practice of the province, Indian negotiations 
were carried on by the governor and council, holding frequent 
communications with the house. The governor, acting under 
advice of the council, wrote letters to agents among the Indians 
or in the frontier towns, received from them reports of their 
dealings, sometimes himself visited the frontiers and by previous 
appointment conferred with the chiefs, making treaties of more or 

^ Greene, Provincial Governor, 108. 



IN PROVINCIAL MASSACHUSETTS. I29 

less formality. The letters which he received he usually sent down 
after perusal by the council, for the house to read, sometimes on 
his own initiative, often at the request of the house. Likewise 
the personal negotiations he usually reported to them in his 
speeches to the assembly. The advice of the house was fre- 
quently forthcoming, was always received in good part, and was 
often followed, because of its expression of the will of the 
body whose purse could make war or end it. But the action of 
the house was only occasional and spasmodic. Joint committees 
of house and council might concert measures and they would 
have weight with the governor ; representatives of the two houses 
frequently at his own request accompanied him on the negotia- 
tions, to give added dignity to the occasion; but he it was and 
not they who made the decisions, except in the last resort, where 
for the decision of war and peace the power of the purse could 
be made effective. It was too heavy a tool to use in most mat- 
ters of diplomacy. 

Phips and Stoughton were practically at one with house and 
council in this, as in most other matters. There was therefore no 
conflict during their administrations, Dudley was very skilful in 
his dealings with the Indians, and except on one important occasion 
(the Borland case, 1706) his devotion to the service of the province 
in a military and diplomatic way was above suspicion. There was 
for this reason little attempt to limit his discretion, which was gen- 
erally recognized as wise and efficient. His manner of dealing was 
exemplified in 17 10, when, on February 3, he communicated to 
the council certain letters about dealing with the Indians through 
a Norridgewock prisoner. By advice of the council it was 
decided that the Indian be sent, and instructions were drawn 
up, "and the said letters and instructions sent down to the Rep- 
resentatives for their perusal, which were returned with their 
approbation by a message." Dudley would keep the house in- 
formed what he was doing with the Indians, but it was for their 
perusal that he sent the papers ; their validity was not dependent 
on the approbation of the house, for the next day a change was 
made in the instructions, and no mention is made of its being 
communicated to the representatives. 

In Shute's administration the house took a higher stand, as- 
suming an aggrieved tone in regard to Indian negotiations which 

*9 



150 CONSTITUTIONAL CONFLICT 

were not carried on according to their plans. We even find a 
declaration of war with the Indians the occasion of action by the 
house. On August 8, 1722/ Shute announced in his speech that 
by advice of the council he had declared war against the Eastern 
Indians as rebels and traitors. On August 10 the house sent an 
address to Shute declaring that they thought the governor and 
council had sufficient reason to declare the Indians rebels, and 
agreeing to the prosecution of a vigorous war. 

In 1 72 1 -2 a strong effort was made to engage the Iroquois 
in offensive alliance against the Eastern Indians. On September 
9, 1721, the council sent a message desiring to "know if the house 
design to join in the care of sending the present to the Five 
Nations or whether they will leave it to the Board." On Novem- 
ber 13 the representatives replied. Referring to the present of 
£500, which was recommended at the last session, it says : "altho 
the House was not then advised with in any respect concerning 
the disposal of the aforesaid present, as they justly expected to 
have been, nor gave any order therefor, yet they think it requisite 
that they be now informed" who were the commissioners, how 
they were instructed, what they accomplished. A message was 
sent down with the papers, giving an account of the transaction. 

Later, in 1722, the house made an advance. In response to 
the proposition of a joint committee,^ on August 19, that a present, 
of £500 be sent to the Indians by commissioners, and that his Ex- 
cellency be desired to write to the governor of New York to pro- 
mote the affair, the house non-concurred, but proposed^ on August 
16 a present of £1000^ the treaty to be in this province, commis- 
sioners to "be appointed by this court," and his Excellency to 
be desired to be present. That is, the house tried to assume 
the leading part. The council unanimously non-concurred, but it 
practically was the program of the house that was carried out in 
November. The place of the conference was fixed in Boston, 
not "at Deerfield or elsewhere in Hampshire as His Excellency 
shall think proper." On November 22 the house expressed* its 
desire that what was to be proposed to the delegates of the Indians 
at their dismissal be prepared by the whole court. The governor's 



' Court Records, XI. 380. 
*Ibid, 383. 
' Ibid, 393. 
* Ibid, 414. 



IN PROVINCIAL MASSACHUSETTS. I3I 

speech was sent down to the house, which replied that "they be- 
ing concerned in the speech now proposed to be delivered to the 
delegates of the Six Nations, cannot consent to the same as it is 
now drafted unless where the word 'I' is it be added in the name 
of the General Court and that the House be present when it is 
delivered." The house had its way. 

The same direct control was maintained by the house during 
Dummer's administration, 1723- 1728. Their position was recog- 
nized in a vote of the council on June 25, 1723,^ (with which, of 
course, the house concurred), that his Honor "be desired to have 
the assembly sitting when any overtures of a pacification with the 
Eastern Indians come under consideration." 

For negotiations with Indians, hostile or friendly, commis- 
sioners were appointed by the whole court and their instructions 
were passed concurrently.^ This was insisted on in form even when 
the action was really taken by the lieutenant-governor and council. 
For example, in June, 1725, both houses accepted the report^ of 
a joint committee that his Honor "by the advice of this court ap- 
point" two commissioners. The house sent word that it was ready 
to make the appointment in conjunction with the board. Dummer 
sent word to the house, however, "that agreeable to the advice of 
the court he had appointed Col. Tailer and Col. Stoddard to go 
upon the message Eastward, that he had communicated the same 
to the Board and it is acceptable to them, and that he now 
communicates it to the House, not doubting but it will be 
acceptable to them also." On the question, "Whether the advice 
of the Court had been had in appointing and sending down two 
gentlemen to the Eastward which His Honor has nominated for 
that service/' the house voted in the negative, and it was then 
voted concurrently "that His Honor the Lieutenant-Governor 
be desired to appoint" the same two men, by which procedure 
the house gained a barren precedent and nothing more. 

In late August and early September of 1723 a body of del- 
egates from the Six Nations came to Boston. By the general 
court, "Heads for the Conferences" were drawn up and accepted, 
the Lieutenant-governor was "desired to speak to them in the 
name of the Court" and that "Mr. Speaker and the Committee [of 

' Court Records, XL 569. 

' Court Records, XII. 20, 32, 180, 330. August, 1723, June, Dec, 1724. 

nbid, 421. 



132 CONSTITUTIONAL CONFLICT 

the two houses jointly] be of advice to His Honor more immedi- 
ately upon any emergency." On six different days conferences 
were held between the delegates and the Lieutenant-governor, 
the whole court being present. Answers to proposals of the dele- 
gates were digested by a joint committee and accepted by the 
whole court, and the minutes of the conferences were signed by 
the speaker for the house, by the secretary for- the council, and by 
the lieutenant-governor.^ 

A dispute arose on the conclusion of this conference as to 
the proper seal to be affixed.^ The lieutenant-governor's private 
seal having been placed on a belt of wampum presented to the 
delegates, the house resolved that it be defaced and that the seal 
of the province be affixed. The council non-concurred, and de- 
sired the house to withdraw the resolution, the governor being 
keeper of the seal. But the house declared that "the affixing a 
private seal contrary to the agreement of a committee was a high 
affront and indignity to them." They later justified themselves on 
the ground that less authority in the eyes of the French and In- 
dians would attach to a treaty bearing the private seal of the lieu- 
tenant-governor than to one with the seal of the province, and 
said that it was for this reason, and not out of disrespect to the 
lieutenant-governor that they had entered this protest.^ 

At the end of 1725 there was a conference of Eastern Indian 
delegates at Boston for concluding a general pacification. On 
November 11 Dummer sent word to the house that the Indian 
delegates were present and that if the house or any of them should 
incline to be present it would be acceptable.* Upon the house ask- 
ing whether this was *'to be of advice or spectators only," Dum- 
mer replied that the making of war or peace with the Indians be- 
longed to the lieutenant-governor with the advice of the council, 
by the 77th instruction, but that he would be ready on occasion to 
receive the advice of the house of representatives. The next day 
the house declared its "earnest desire" to proceed in the same 
method as in the treaty with the Six Nations in 1723. Dummer 
found "a great difference" between the two cases, the treaty in 
1723 being with his Majesty's subjects, friends of this govern- 

^ Court Records, XII. 29-54, passim. 
'Hutchinson, II. 269, 270. 
'Court Records, XII. 50. 
"Court Records, XIII. 11. 



IN PROVINCIAL MASSACHUSETTS. I33. 

ment and always at peace with us, the design of the treaty being 
to obtain assistance, (as it were, an inter-colonial affair) ; "whereas 
the Eastern Indians are His Majesty's enemies and in a state of 
rebellion and now sueing for peace. In the mean time I am very 
desirous that both Houses should be present at the conference." 
On the I2th of November a conference was held "between His 
Honour the Lieutenant-Governor and the Indian delegates in the 
Council Chamber, the two houses being present."^ On November 
15 Dummer informed the house that he had commissioned several 
gentlement to treat with the Indians, including the speaker and 
two other members of the house, and though the house asserted its 
earnest desire that "the whole Court, who are the grand Council 
of the Province may be of advice to His Honour" as is usual and 
not "inconsistent with His Honour's undoubted power to make 
peace or war," yet the lieutenant-governor would only say that he- 
should "always be ready to receive" the advice of the house. Re- 
garding the method of treating by commissioners as "more agree- 
able to the method of former treaties than to have the whole Court 
present ... .as well as upon many other accounts more proper 
and convenient" he held no more conferences in the presence of 
the whole court, but conducted the negotiation through commis- 
sioners, who were, however, instructed by the concurrent action 
of the two houses. The treaty, when negotiated, was agreed to by 
the two houses with some alteration by mutual accommodation, 
and on December 15 "in presence of the whole Court the pacifica- 
tion was completed and signed."- At the exchange of ratifications 
in the following July the lieutenant-governor was accompanied to^ 
the eastward by a quorum of the council, and at his suggestion by 
ten of the representatives, appointed by them for the purpose. 

The regulation of Indian affairs in time of peace was assumed 
entirely by the general court. They were regarded as subjects 
of the king, in an extraordinary condition it is true, but under the 
legislative power of the province, like any other class of inhabit- 
ants. But there was also a special reason for their affairs being 
attended to by the general court rather than by the governor and 
council. The system of truck-houses at frontier posts, where the 
trade with the Indians (now the chief concern of the white in his 
relation with the redskin) was carried on by public officers, elected 

'Court Records, XIII. 16. 
^'Ibid, 81. 



134 CONSTITUTIONAL CONFLICT 

by the court, was supported from funds appropriated by the gen- 
eral court, and as being "an affair of money" was peculiarly sub- 
ject to the influence of the house. 

Thus the house is found playing a part in the fields of mil- 
itary and diplomatic policy, far beyond what was contemplated in 
the charter, but subject to very substantial limitations. It wages 
war, advising and sometimes dictating the precise course to be 
followed by the executive. It is enabled to gain this control over 
the governor by the fact that it possesses the sinews of war, which 
it may grant or withhold. The more delicate process of diplo- 
macy is not so immediately subject to the application of this heavy 
tool, and here the governor enjoys a considerable degree of inde- 
pendent discretion. But his independence is largely a matter of 
immediate convenience to the house, which can not of itself con- 
veniently perform executive functions. His seemingly independ- 
ent action in always conditioned by the necessity of the tacit con- 
sent of the house ; for if he neglects this he will be brought sooner 
or later to recognize that the body of government that holds the 
purse-string holds the essentials of sovereignty. 



APPENDIX. ■ 

I. Educational Institutions Attended by the Author. 

Waterville (Maine) High School, 1890-1894. 
Coburn Classical Institute, 1894-1895. 
Colby College, 1895-1899. 
Columbia University, 1900-1903. 

II. Degrees and Appointments. 

A. B., Colby College, 1899. 

A. M., Columbia University, 1901. 

Instructor, Coburn Classical Institute, 1899-1900. 

University Fellow in American History, Columbia Uni- 
versity, 1902-1903. 

Instructor in American History and Political Science, Ohio 
State University, 1903-1905. 

Assistant Professor of American History and Political 
Science, Ohio State University, 1905. 

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